NY Judge Rules against Government on HHS Mandate – UPDATE

NY Judge Rules against Government on HHS Mandate – UPDATE December 17, 2013

::::UPDATE:::: Go immediately and read Gabriel Malor’s excellent read-and-analysis on Judge Cogan’s decision. It’s terrific!

Uncle Sam wants You, Sisters, to pay for sterilization, contraception and abortifacients, or take your good work out of the country!

Rather surprised at the lack of coverage on this one, but then again, this ruling is merely one battle in the course of an ongoing conflict. Nothing will be fully and finally settled on this issue until the Supremes address it, and there is still time for the make-up of that court to change and better-reflect the thinking of the current government.

Nevertheless, this ruling by U.S. District Judge Brian Cogan, while unsurprising, is good news. It is unsurprising because Cogan was the judge who, just about a year ago, allowed the suit brought by the Archdiocese of New York to go forward in pursuit of a religious-conscience exemption to the constitutionally-dubious HHS Mandate.

Cogan not only finds in favor of the Archdiocese of New York, but, as Gabriel Malor noted on twitter, he really goes after the federal government with six-shooters a-blaze.

I haven’t read the whole opinion yet; it seems pretty sensible to me, but then again, it would. I particularly like Cogan’s brushback against the government’s argument that absent executive action, it has no recourse to amend its position:

“. . .the Mandate burdens plaintiffs’ religion by coercing them into authorizing third parties to provide this coverage through the self-certification requirement, an act forbidden by plaintiffs’ religion.

In view of this burden, numerous less restrictive alternatives are readily apparent. The
Government could provide the contraceptive services or insurance coverage directly to plaintiffs’employees, or work with third parties – be it insurers, health care providers, drug manufacturers, or non-profits – to do so without requiring plaintiffs’ active participation. It could also provide tax incentives to consumers or producers of contraceptive products. Many of these options have been recognized as feasible alternatives by other courts. See Korte, 735 F.3d at 686. It is true that a proposed alternative scheme must be workable in order to qualify as a viable less restrictive means. See Fisher v. Univ. of Texas at Austin, ___ U.S. ___, 133 S. Ct.2411, 2420 (2013). 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.

Dude! Judge Cogan apparently thinks the Constitution is, like, relevant, even in the age of Obamacare, where laws can just be changed, over and over again, on you know…whims and stuff!

Cogan’s comments also helpfully, if discreetly, demonstrate that the government, by the weakness of its own argument, gives the strong impression that they think women are either so unintelligent as to require a world where no questions ever need asking, or are such shrinking violets that the act of making an inquiry or filling out a form might lead to feminine collapse and a nationwide case of the vapors.

The Government also argues that these alternatives would impose new administrative costs or not be as effective in advancing the Government’s goals. As for the first argument, the Government has not identified these costs with any specificity, and in any event a less restrictive alternative is not infeasible simply because it is somewhat more expensive for the Government. See Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 799-800, 108 S. Ct. 2667, 2680 (1988) (noting that a state “may vigorously enforce its antifraud laws” as a less restrictive alternative to compelled disclosures). As for the second, the Government argues that the proposed alternatives would be less effective because they require women to take extra, burdensome steps including “find[ing] out about the availability of and sign[ing] up for a new benefit,” rather than the “minimal logistical and administrative obstacles” they would enjoy under the Mandate. The Government does not, however, further explain these steps and why they would be burdensome on plaintiffs’ employees. If these steps only entail filling out a form, it seems that the burden of filling out that form should fall on those who have no religious objection to doing so. If finding out about these benefits is burdensome, the Government could make a stronger effort to inform the public about them.

All emphasis mine. Isn’t it sweet that they want to make sure the little women don’t have to bother their pretty little heads with hard questions about coverage and options and costs? Their dainty li’l hands ought not to be sullied with ink; their adorable little brains shouldn’t have to strain themselves by checking off a box or two. What if they get confused? What if they check the wrong box? This might be hard, like math!

I’m wondering why the government was not equally concerned about making their Obamacare exchanges as simple as possible, too. This is the soft sexism of lowered expectations! These poor darlings, who only want to live by their code of morals and beliefs; why should they have to actually ask if their employers — who have no right to their own consciences — will make sure their tubal ligations are fully covered, and thus “free”? They…they…(oh, it’s so awful, I can barely say it!) they might hear…ooomp…they might hear the word ‘no!’ Oommp! And there is no other way to get them birth control and sterilizations and…oomp…those so-called abortifacients, which everyone knows is ooomp, just a hormone. There’s only this one way to provide this stuff and it’s oomp, by making religious oomptrests and religious employers oomp sure it’s covered! Ooomp…oomp, sob, sob.

The HHS Mandate is a bit of law that never had to be written; if the government wanted to make sure every woman and man could have themselves sterilized for free, they could have just written that legislation and passed that legislation, and employers — be they church-affiliated or secular — would not have had to battle the government over their freedom to form a conscience and hold to it, which breaks down to the simplest and most obvious of rights: the right to think one’s own thoughts, and to give them representation within one’s life, one’s business and even one’s institution, without threat of government sanctions, fines or crack-downs.

The mandate is a spite-law; it is there for no other reason than to discomfit and punish religious consciences that have not yet been prostrated to the age. If unimpeded it will eventually take control over church-run health and human service interests, so that all things are gathered unto the government, and intimidate people into shutting up about their religious views. It is a most illiberal sort of law.

Good for Judge Cogan. Let’s hope this thing winds through the courts and up to the SCOTUS soon.

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