Federal judge: Moral objections enough to override HHS contraception mandate

In a stunning decision, a federal judge permanently barred the Department of Health and Human Services from enforcing the contraception mandate under ObamaCare against an employer for moral rather than explicitly religious grounds. Judge Richard Leon, the same DC district court judge that ruled the NSA phone collection program unconstitutional (and was reversed last week), rebuked the federal government for violating the Equal Protection clause by only allowing religious groups a waiver for objections to contraception and other products and services. Ruling in favor of March for Life, Leon said that the 14th Amendment demands equal protection for similarly situated entities. If the moral objection is the same as the religious objection, HHS has to honor them both.


When HHS argued that March for Life wasn’t eligible for a waiver because it wasn’t a religious organization, Leon ruled that HHS missed the point:


This is the main reason:


Only applying a waiver for religious organizations when the objection is the same, and the reason for HHS’ accommodation is the same — that employees aren’t likely to want contraception through employers anyway — amounts to “regulatory favoritism,” Leon writes. In an effort to apply the mandate as broadly as politically possible, HHS has run roughshod over moral objections to their policy that are identical to the exceptions granted, and “HHS provides no principled basis, other than the semantics of religious tolerance, for its distinction.”

But Leon does not end there. He also attacks HHS’ contention that the mandate is narrowly tailored to support a compelling government interest, thanks to the religious objections lodged by individual plaintiffs in March for Life v Burwell. Is the mandate the least restrictive means for that compelling interest? “Assuredly, it is not!” Leon writes. The government is forcing insurers to cover contraceptives in all its plans, removing the option for insurers to craft plans that meet March for Life’s rational desires. The combination of those mandates on the market burdens the free exercise of religion in such a manner that a court could strike it under RFRA.


Needless to say, this might expand waivers in all sorts of different ways. Any organization oriented toward moral objections to certain kinds of contraception — or all forms of it — could get waivers in Leon’s vision of the 14th Amendment. That will create a massive headache for HHS, and a never-ending series of tests to determine who has to comply and who doesn’t. This, however, is a problem of the government’s own making.

The New York Times inserted its own editorial position in its report on the decision, emphasis mine:

Employers do not need to provide insurance coverage for contraception even if their objections are moral rather than religious, a federal judge here ruled on Monday.

The case concerned a group called March for Life, which was formed after the Supreme Court recognized a constitutional right to abortion in 1973 in Roe v. Wade. The group, Monday’s decision said, “is a nonprofit, nonreligious pro-life organization.”

It opposes methods of contraception that it says can amount to abortion, including hormonal products, intrauterine devices and emergency contraceptives. Many scientists disagree that those methods of contraception are equivalent to abortions.

So what? Like Leon said of HHS, the New York Times misses the point. First, IUDs and “emergency contraceptives” (Plan B, for example) are explicitly abortive; they work by expelling the embryo from the uterus rather than preventing its conception. That’s what the “emergency” in “emergency contraception” means — that it’s past the time of actual contraception, and now time for birth control through a rapid and early abortion of the embryo via non-clinical means. Contraception means to prevent conception, not birth, and “emergency contraception” as applied in this case is a contradiction in terms.


But even that debate is besides Leon’s point. “Scientists say” doesn’t override religious or moral objections, and the government can’t force people to violate those principles without having (a) a compelling state interest, and (b) using the least intrusive method possible to meet it.

Alliance Defending Freedom, which represented March for Life, declares victory and notes the broader context being established for objections to the HHS mandate:

“Pro-life organizations should not be forced into betraying the very values they were established to advance,” said ADF Senior Legal Counsel Matt Bowman. “This is especially true of March for Life, which was founded to uphold life, not to assist in taking it. The government has no right to demand that organizations provide health insurance plan options that explicitly contradict their mission.”

March for Life is a non-profit organization founded in 1973 following the U.S. Supreme Court’s decision legalizing abortion in Roe v. Wade. Every year in January, March for Life holds a peaceful march to the U.S. Supreme Court and Capitol Hill to mark the decision until it is overturned.

The organization’s strongly-held moral beliefs against abortion forbid it from furthering abortion through health insurance coverage it offers to its employees, including coverage for hormonal birth-control items it believes can endanger early embryos. March for Life’s beliefs are based solely on non-religious ethics and science, while its two employees who joined the suit additionally claimed faith-based reasons for objecting to the mandate.

“If the purpose of the religious employer exemption is, as HHS states, to respect the anti-abortifacient tenets of an employment relationship, then it makes no rational sense-indeed, no sense whatsoever to deny March for Life that same respect,” explains the decision.
“Americans should not be forced to choose between following their deepest convictions and submitting to unlawful and unnecessary government mandates,” added ADF Senior Counsel Kevin Theriot. “We hope other courts that consider similar cases will issue their own orders upholding the right of pro-life organizations to be free from this type of government coercion.”

Don’t pop the bubbly yet. This will get sent to the DC appellate court, and likely to the Supreme Court. It will be interesting to see how those courts might try to parse out distinctions where Leon claims none exist.

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