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December 17, 2013

Six Important Take-Aways From Yesterday's Decision Striking Down The Contraception Mandate in New York

Yesterday, a district court judge struck down the Obamacare contraception mandate as applied to the Catholic Archdiocese of New York and its constituent organizations as a violation of the Religious Freedom Restoration Act. You can read the decision here (PDF), but I wanted to highlight some important parts.

1. This is the first litigation to result in a final injunction against the contraception mandate for religious non-profit organizations that come within the Obama Administration's purported exemption to the mandate. The 7th, 10th, and D.C. Circuit Courts of Appeals have all found the mandate to be an unacceptable burden on the free exercise of religion for for-profit businesses that don't come under the exemption. This case is important, though, because it recognizes that even the act of having to claim the exemption is an unacceptable burden on religion.

I explained in February how the Obama administration proposed to conjure contraception from thin air in order to make it available to the employees of religious organizations. What I didn't mention then was that, for this act of sorcery to work, the religious organizations would have to "self-certify" in order to direct that a third party provide contraception. The Archdiocese of New York, and many other religious organizations, pointed out that the act of self-certifying is itself a violation of its religious beliefs and sued.

2. Not even the Obama administration knows what its proposed regulations do. Very late in this case, the government realized that, although the Archdiocese and its constituent organizations are covered by the mandate, the regulations might not actually force a third party they designate to provide the objectionable contraception coverage. The judge was not amused:

The Government’s belated “realization” that the challenged regulations may not actually result in the provision of contraceptive coverage to plaintiffs’ employees is difficult to fathom. . . . It is unclear how citizens like plaintiffs . . . are supposed to know what the law requires of them if the Government itself is unsure. After almost 18 months of litigation, defendants now effectively concede that the regulatory tale told by the Government was a non-sequitur.

The judge found that, despite the administration's contortions to suggest the Archdiocese might not even be covered, the contraception mandate scheme was sufficiently burdensome to proceed to a decision.

3. The Obama administration doesn't take religious beliefs seriously. In an astonishing display of anti-religious sentiment, the administration argued that forcing religious organizations to designate a third party to provide contraception coverage to their employees isn't a big deal (legally: de minimis) because it's "just a form" to fill out, "a purely administrative task." The district court rightly found that whether a violation of religious freedom is small or large isn't for the courts to decide. It would be too easy to simply sweep away deeply-held religious beliefs under the claim that government action is merely "de minimis" infringement of rights.

There is no way that a court can, or should, determine that a coerced violation of conscience is of insufficient quantum to merit constitutional protection.

4. The Obama administration has handed out so many exceptions to the law, it can no longer claim the law serves a compelling purpose. In the past, courts have allowed the government to infringe religious rights if the government demonstrates a compelling interest and narrow tailoring, for example, income tax laws or criminal laws related to marijuana and peyote. But in this case, the administration was not able to claim that the contraception mandate serves a compelling purpose because it has been falling all over itself (largely for political reasons) to offer exceptions to the law.

The Government has not made a similar showing of a compelling interest in uniform enforcement of the Mandate, for the simple reason that enforcement of the Mandate is currently anything but uniform. Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and “religious employers” like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs.

5. The Obama administration's belated argument that the religious organizations may not actually end up providing any contraception coverage fatally undermined the administration's case. This comes under the category of bad litigation strategies. As I mentioned up in the second item on this list, the administration realized near the end of the litigation that the third parties designated by the Archdiocese to provide coverage may not actually be required to provide contraception. The district court rightly noticed that if that argument is true, the mandate obviously serves no purpose.

Here, the Government implicitly acknowledges that applying the Mandate to plaintiffs may in fact do nothing at all to expand contraceptive coverage, because plaintiffs’ [designated third party providers] aren’t actually required to do anything after receiving the self-certification. In other words, the Mandate forces plaintiffs to fill out a form which, though it violates their religious beliefs, may ultimately serve no purpose whatsoever.

I have italicized the last portion of that quote for emphasis simply because, when you put it like that, the administration's argument is so obviously bad and hostile to religion.

6. The Obama administration thinks it has a general exception from complying with the Constitution. The administration, as it has frequently done with respect to disobeying laws it does not like, argued that it had to enforce the contraception mandate in such an infringing manner because it could not do it any other way. The district court pointed out the obvious flaw in this line of thinking:

The Government first argues that the alternatives above are infeasible because the defendants lack statutory authority to enact some of them. This argument makes no sense; in any challenge to the constitutionality of a federal law, the question is whether the federal government could adopt a less restrictive means, not any particular branch within it. It would set a dangerous precedent to hold that if the Executive Branch cannot act unilaterally, then there is no alternative solution. If defendants lack the required statutory authority, Congress may pass appropriate legislation.

Of course, we all know that President Obama cannot go back to Congress to fix this since Congress would most likely provide a wider exemption to the contraception mandate than Obama's HHS has provided via regulation, assuming Congress doesn't just start trimming out major portions of the law, altogether. This is a problem of the administration's own making, and there it will stay -- until the courts finish knocking it down, that is.


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posted by Gabriel Malor at 10:00 AM

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