I mean in addition to the first reason (that it’s unconstitutional). It’s simple, as District Judge John L. Kane noted when he handed down an injunction the other day which thwarted the governments’ case (bold emphasis is mine),
I do not mean to suggest that the government may not establish a compelling interest in the uniform application of a particular program. To make such a showing, however, the government must “offer evidence that granting the requested religious accommodations would seriously compromise its ability to administer this program.” Id. at 435. Any such argument is undermined by the existence of numerous exemptions to the preventive care coverage mandate. In promulgating the preventive care coverage mandate, Congress created significant exemptions for small employers and grandfathered health plans.11,12 26 U.S.C. § 4980H(c)(2) (exempting from health care provision requirement employers of less than fifty full-time employees); 42 U.S.C. § 18011 (grandfathering of existing health care plans). Even Defendants created a regulatory exemption to the contraception mandate. 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011) (exempting certain religious employers from the contraception requirement of the preventive care coverage mandate).
A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,508 U.S. 520, 547 (1993); see also United States v. Friday,525 F.3d 938, 958 (10th Cir. 2008). The government has exempted over 190 million health plan participants and beneficiaries from the preventive care coverage mandate;13this massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.14
11. The government’s attempt to characterize grandfathering as “phased implementation” is unavailing. As noted above, health plans may retain their grandfathered status indefinitely. Most damaging to the government’s alleged compelling interest, even though Congress required grandfathered health plans to comply with certain provisions of the ACA, it specifically exempted grandfathered health plans from complying with the preventive care coverage mandate. See 42 U.S.C. § 18011(a)(3-4) (specifying those provisions of the ACA that apply to grandfathered health plans).
12. The government argues that because these provisions are generally applicable, and not specifically limited to the preventive services coverage regulations, they are not exemptions from the preventive care coverage mandate. This is a distinction without substance. By exempting employers from providing health care coverage, these provisions exempt those employers from providing preventative health care coverage to women. If the government has a compelling interest in ensuring no-cost provision of preventative health coverage to women, that interest is compromised by exceptions allowing employers to avoid providing that coverage — whether broadly or narrowly crafted.
13. Even if, as is estimated under the government’s high-end estimate, 69% of health plans lose their grandfathered status by the end of —, millions health plan participants and beneficiaries will continue to be exempted from the preventive care coverage mandate. See 75 Fed. Reg. 34538, 34553.
14. To the extent the government argues creating an exemption for Plaintiffs threatens to undermine the preventive care coverage mandate, that argument is inconsistent with RFRA and irrelevant in this context. See Gonzales, 546 U.S. at 436 (rejecting “slippery slope” argument as inconsistent with RFRA).
Read the entire order handed down in Newland vs. Sebelius over at Leagle. They’ve got the whole thing, footnotes and all.
But before you do, have a look at the following video, where Justice Kane opines on what needs to be done to truly reform the civil justice system.
I especially like his idea to “escape from having commercial interests drive everything that we do.” Hear, hear!