Just the other week, Judge Brian Cogan
of the U.S. District Court for the Eastern District of New York, not only
struck down Obamacare's contraception mandate as applied to religious
non-profit organizations, but also sent a strong signal that federal courts were
losing patience with President Obama's many over-extensions of executive power.
Previous courts had ruled against
President Obama's contraception mandate as applied to for-profit entities (see Sebelius v Hobby Lobby); but this was
the first court to hold that participating in Obama's effort to provide free
birth control is a substantial burden on the free practice of religion
(specifically the Catholic Archdiocese of
New York and its affiliate organizations). The contraception mandate “directly compels
plaintiffs, through the threat of onerous penalties, to undertake actions that
their religion forbids,” Cogan wrote. “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.”
Cogan forcefully rejected three key
Obama defenses of the mandate:
First, on the government's claim that there
was a compelling interest in uniform enforcement of the contraception mandate,
Cogan wrote: “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.”
Second, the court also rejected Obama's
last minute claim that Obamacare's contraception mandate, as implemented for
religious organizations, did not, in fact, mandate contraception. “Here,” wrote Cogan, “the Government
implicitly acknowledges that applying the Mandate to plaintiffs may in fact do nothing
at all to expand contraceptive coverage, because plaintiffs’ TPAs [third-party
administrators] 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. A law that is totally ineffective cannot serve
a compelling interest.”
Finally, the court also rejected the
government's argument that Obama's failure to convince Congress to “fix”
Obamacare authorized him to enforce his contraception mandate in the manner he
did. Cogan concludes, “Nor is the
Mandate the least restrictive means by which the Government can improve public
health and equalize women’s access to healthcare. ... 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. 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.”
Considering how often Obama has
justified his expansion of executive power on Congress' failure to do his
bidding, this ruling was not only a huge victory for religious liberty, but a
huge win for limited government in all spheres as well.
Rev.
Dr. Kenneth L. Beale, Jr.
Chaplain
(Colonel-Ret), U.S. Army
Pastor,
Ft. Snelling Memorial Chapel
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