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.
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.