Legal issues in overturning the insurance mandate

The Obamacare abortion pill/contraceptive mandate is so obviously a government assault on religious liberty that the courts are sure to overrule it.  Right?  I’ve been hearing that.  Eight lawsuits have already been filed.  But the legal issues get complicated, with a precedent that might let the Obama administration have its way.  There is, however, a way to trump that precedent, depending on how the issue is construed.  Journalist N. C. Aizenman gives a useful overview of how the cases will be argued:

The plaintiffs will argue, among other claims, that the rule, which takes effect Aug. 1, interferes with their First Amendment right to free exercise of religion by effectively compelling them to provide a form of coverage that conflicts with their beliefs.

To win that argument, they will need to clear a major legal hurdle: A landmark 1990 decision in a case called Employment Division v. Smith, in which the Supreme Court found that if a law is “neutral and generally applicable” — meaning that it is not specifically targeted against any religious group — individuals must comply with it even when doing so imposes a burden on their free exercise of religion.

Writing for the majority in that case, Justice Antonin Scalia — a conservative justice known for his strong identification with the Catholic Church — found that to allow otherwise “would be courting anarchy” by making “the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself.”

In the last decade, the highest state courts of both New York and California cited the Smith decision in blocking First Amendment challenges to state contraceptive-coverage laws virtually identical to the federal rule.

In both instances, the state courts found that their state’s laws met the “neutral and generally applicable” standard set out in Smith. And in both cases, the U.S. Supreme Court declined to hear an appeal of the lower court’s decision. . . .

In addition to their constitutional challenges, the plaintiffs will try to convince judges that the federal rule violates a 1993 law adopted by Congress in response to the Supreme Court’s Smith decision.

The Religious Freedom Restoration Act signed into law by President Bill Clinton, essentially replaces the “neutral and generally applicable” standard set by Smith with one that is far more stringent. It states that even a generally applicable federal law cannot “substantially burden” a person’s exercise of religion unless the law furthers a “compelling government interest” and does so by the “least restrictive means.”

The plaintiffs argue that because the vast majority of health plans in America already offer contraceptive coverage, the government’s aim to make that coverage virtually universal is not compelling. And they contend the administration could achieve its goal through other means — for example by having the government directly provide contraceptives to women who work for religious organizations that don’t offer it.

via New front in birth control rule battle: the courts – The Washington Post.

Of course the best case scenario would be for the Supreme Court to throw out the whole health care law, which could happen.  It could also NOT happen.

In the meantime, though the issue at first seemed to be a loser for the Obama administration–threatening to cost Democrats the Catholic vote–now the Democrats, with the help of the media, have successfully cast the controversy as a Republican attempt to do away with birth control and thus a Republican war against women!  That means that the administration is likely to insist that the mandate be enforced.

 

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Michael B.

    “have successfully cast the controversy as a Republican attempt to do away with birth control”

    Is that not the case? Is it not the case that many Republicans believe the embryo is a person, and thus the birth control pill can cause murder?

    I suppose the other option is that this is all some political ploy by the Democrats to help win the election, and the Republicans took the bait.

  • Michael B.

    “have successfully cast the controversy as a Republican attempt to do away with birth control”

    Is that not the case? Is it not the case that many Republicans believe the embryo is a person, and thus the birth control pill can cause murder?

    I suppose the other option is that this is all some political ploy by the Democrats to help win the election, and the Republicans took the bait.

  • http://www.facebook.com/mesamike Mike Westfall

    I wish there was a way to subscribe to the comments without actually having to post something…

  • http://www.facebook.com/mesamike Mike Westfall

    I wish there was a way to subscribe to the comments without actually having to post something…

  • Steve Billingsley

    I am not so sure this is a political winner for Democrats.

    http://www.cbsnews.com/8301-503544_162-57395832-503544/poll-most-say-employers-should-be-allowed-not-to-cover-contraception/

    This polls shows a 57-36 margin against the HHS mandate. And 51-40 when applied to all employers (not just religious employers)

    These numbers are even with the political dog-and-pony show that has been running the past few weeks.

  • Steve Billingsley

    I am not so sure this is a political winner for Democrats.

    http://www.cbsnews.com/8301-503544_162-57395832-503544/poll-most-say-employers-should-be-allowed-not-to-cover-contraception/

    This polls shows a 57-36 margin against the HHS mandate. And 51-40 when applied to all employers (not just religious employers)

    These numbers are even with the political dog-and-pony show that has been running the past few weeks.

  • Dr. Luther in the 21st Century

    I see the current administration caving at the last minute as this is likely only a political maneuver to lock in some votes. Once they are locked in Obama will drop the mandate. I say this because I seriously doubt he is dumb enough to want to face the political quagmire of arresting or otherwise prosecuting the R.C.C Bishops along with any number of heads of denominations that refuse to abide by the rule.

    But then I just paid over 4 bucks a gallon so I could get to work. Maybe, Obama really is that stupid.

  • Dr. Luther in the 21st Century

    I see the current administration caving at the last minute as this is likely only a political maneuver to lock in some votes. Once they are locked in Obama will drop the mandate. I say this because I seriously doubt he is dumb enough to want to face the political quagmire of arresting or otherwise prosecuting the R.C.C Bishops along with any number of heads of denominations that refuse to abide by the rule.

    But then I just paid over 4 bucks a gallon so I could get to work. Maybe, Obama really is that stupid.

  • –helen

    I’ve been reading some rants in the comments of the WashPost (no doubt the same other places) about how “52% of the people in this country are women and “we” aren’t going to put up with this assault on our [sexual] “freedom”.
    It’s probably a waste of time to point out that the freedom threatened is freedom of religion, or that nobody is being deprived of any preventive or abortifacient they want to pay for, or that not all of the 52%, for various reasons, including religion, age, etc. are demanding “free” abortifacients.
    (But I’ve tried.)
    Basic question: why should these drugs be “free” when most of the pharmacy supplies for life saving medicines cannot be? (So I’m supposed to pay for my thyroid replacement [name brand, extra cost] and pay for someone else’s sleeping around, too?
    Thanks, no thanks!

  • –helen

    I’ve been reading some rants in the comments of the WashPost (no doubt the same other places) about how “52% of the people in this country are women and “we” aren’t going to put up with this assault on our [sexual] “freedom”.
    It’s probably a waste of time to point out that the freedom threatened is freedom of religion, or that nobody is being deprived of any preventive or abortifacient they want to pay for, or that not all of the 52%, for various reasons, including religion, age, etc. are demanding “free” abortifacients.
    (But I’ve tried.)
    Basic question: why should these drugs be “free” when most of the pharmacy supplies for life saving medicines cannot be? (So I’m supposed to pay for my thyroid replacement [name brand, extra cost] and pay for someone else’s sleeping around, too?
    Thanks, no thanks!

  • DonS

    The RFRA (Religious Freedom Restoration Act) is, indeed, the trump card, although I think in this case the mandate is unconstitutional as well. An excellent Wall Street Journal op-ed here: http://online.wsj.com/article/SB10001424052970204795304577223003824714664.html?mod=WSJ_Opinion_LEADTop

    explains the issue succinctly. The mandate violates the RFRA for a host of obvious reasons. It is also unconstitutional because the mandate provides for exemptions for secular reasons, meaning that it does not qualify as a law of general application.

    As Steve says @ 3 above, this issue is decidedly NOT a winner for the Democrats. As often happens, because they live in a media-created bubble, and are not in touch with the values of voters in the heartland, they have seriously overreached.

  • DonS

    The RFRA (Religious Freedom Restoration Act) is, indeed, the trump card, although I think in this case the mandate is unconstitutional as well. An excellent Wall Street Journal op-ed here: http://online.wsj.com/article/SB10001424052970204795304577223003824714664.html?mod=WSJ_Opinion_LEADTop

    explains the issue succinctly. The mandate violates the RFRA for a host of obvious reasons. It is also unconstitutional because the mandate provides for exemptions for secular reasons, meaning that it does not qualify as a law of general application.

    As Steve says @ 3 above, this issue is decidedly NOT a winner for the Democrats. As often happens, because they live in a media-created bubble, and are not in touch with the values of voters in the heartland, they have seriously overreached.

  • Jonathan

    I hope the GOP continues to remind us of its obsession with government-mandated (no religious exceptions) transvaginal ultrasounds.

  • Jonathan

    I hope the GOP continues to remind us of its obsession with government-mandated (no religious exceptions) transvaginal ultrasounds.

  • John C

    It is not just a war on women is it?
    It is also a war on public education, homosexuals, science, global warming and secular society.
    It’s a war on the 21st century.

  • John C

    It is not just a war on women is it?
    It is also a war on public education, homosexuals, science, global warming and secular society.
    It’s a war on the 21st century.

  • –helen

    Dear John,
    You have been reading too many feminazi columnists!

    They make me feel like they are declaring war on me.

  • –helen

    Dear John,
    You have been reading too many feminazi columnists!

    They make me feel like they are declaring war on me.


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