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July 11, 2013

Fourth Circuit Upholds ObamaCare's Power to Compel Religious Institutions to Pay for Birth Control, Abortions

The PDF of the opinion on the Liberty University suit was just released.

As usual, the Court finds for Obama and Empowered Government generally down the line, finding that ObamaCare is okay because sometimes it's a tax and sometimes it's not (per the Supreme Court ruling) and furthermore that the power to tax is "extensive." Indeed, it turns out it's overwhelming.

After finding against the plaintiffs on every earlier point, they turn to the question of whether or not the government may compel private citizens to violate their religious teachings through taxes and mandates, and finds that that's just what the Founders had in mind.

Citations omitted -- it's tricky to cut and paste this pdf (a bunch of page breaks are inserted after each word and sometimes after each letter) and it's just too difficult to include the citations.

Plaintiffs maintain that both the employer mandate and the individual mandate violate their free exercise rights under the First Amendment and RFRA. Specifically, they allege that the mandates unlawfully force them to violate their religious belief that “they should play . . . no part in facilitating, subsidizing, easing, funding, or supporting . . . abortions.”

The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. U.S. Const. amend. I. However, the Clause does not compel Congress to exempt religious practices from a “valid and neutral law of general applicability.” This is so even if such a law “has the incidental effect of burdening a particular religious practice.”

A neutral law of general applicability thus does not violate the Free Exercise Clause.
The Act is just such a law. It has no object that “infringe[s] upon or restrict[s] practices because of their religious motivation, [omitted] and imposes no “burden[] only on conduct motivated by religious belief." Relying on Lukumi, Plaintiffs conten that the Act somehow effects a “religious gerrymander [].”
But it does no such thing. Unlike the ordinances struck down in Lukumi, the Act does not set apart any particular religious group.

The Act therefore does not violate the Free Exercise Clause. Plaintiffs’ RFRA [Religious Freedom Act] claim fares no better. RFRA provides that, “even if the burden results from a rule of general applicability,” the “Government may substantially burden a person’s exercise of religion only if it demonstrates that
application of the burden to the person --

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental

Thus, by its own terms, RFRA directs application of strict scrutiny only if the Government “substantially burden[s]” religious practice (“[I]f the [plaintiffs] cannot show that their exercise of religion is substantially burdened by the [government’s] policy, the [government] is not required to come forth with proof of its interest.”). A substantial burden, in turn, requires “substantial pressure on an adherent to modify his behavior and to violate his beliefs.”

Plaintiffs present no plausible claim that the Act substantially burdens their free exercise of religion, by forcing them to facilitate or support abortion or otherwise. The Act specifically provides individuals the option to purchase a plan that covers no abortion services except those for cases of rape or incest, or where the life of the mother would be endangered.

This is a cutesy bit of reasoning. What the court is saying is that ObamaCare directs employers to purchase insurance on behalf of their employees-- but that employees get to pick the particular plan. And employees could choose a plan that only pays for abortions in some circumstances.

Of course, they could also choose the Abortions Aplenty plan, which the Court ignores. The government does make employees the buyers of abortion services, even if it's done in two-step process (you must pay for any plan Sandra Fluke chooses, and then of course Sandra Fluke chooses the late-term abortion one).

It also ignores the fact that many people think abortion is murder in all cases, included cases of rape and incest. So that "merely" requiring people to pay for some murders (per their belief) is hardly satisfactory.

In addition, the court ignores the fact that there are indeed "less restrictive" ways of providing such care, such as simply mandating that insurers offer limited policies covering such treatments and permitting people to buy them as they will.

Bear in mind, the RFRA was designed to offer, by law, more regard for religious freedom and expression than the Constitution did by itself. The Court just sort of ignores that and finds, essentially, it adds nothing to the protection afforded by the Constitution itself, which, by the way, it finds to be very little at all.

It's just incredible. I don't recognize this country anymore.

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