The Wall Street Journal editorial from March 26, 2014 is hopeful that the abortion/contraception mandate will - and should be - overturned.
ObamaCare v. Religious Liberty. A majority of Justices seem skeptical of the contraception mandate.
The Affordable Care Act returned to the Supreme Court on Tuesday, as the Justices heard a major challenge to the law's birth-control mandate. Five and maybe even six Justices across ideological lines seemed discomfited by the Administration's cramped conception of religious liberty.
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Trying to distinguish between for-profit and nonprofit corporate forms for this regulatory purpose is constitutionally unprecedented. Corporations are often treated as "persons" for legal purposes, such as protecting free speech, and prosecutors can indict entire corporations for breaking laws. As Chief Justice John Roberts observed, minority-owned businesses can bring racial discrimination lawsuits. So why can't Christian- or Muslim-owned businesses exercise religion? Solicitor General Donald Verrilli had no good answer.
Liberal Justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn't it also refuse to pay for blood transfusions or vaccinations? "Could an employer preclude the use of those items as well?" asked Justice Sonia Sotomayor in the day's first question.
Yet no one is "precluding" anything. Contraception is cheap, plentiful and covered by most health plans. Most corporations are run for profit, not piety. Mr. Verrilli claimed the mandate is necessary to promote public health and gender equality, but HHS could have aided those goals without forcing a minority of business owners with moral aims to implicate themselves in what they consider to be grave moral wrongs.
HHS itself recognized religious sensitivity to the mandate by exempting some businesses but not others, and it could have extended the same conscience accommodations to for-profits as it did to nonprofits. Congress also could have created a free birth-control program for the poor or employees of religious institutions, or increased subsidies for Planned Parenthood. Even liberal Justice Stephen Breyer wondered whether the mandate was "the less restrictive way" to provide birth control, while Justice Anthony Kennedy noted that HHS believed "the health-care coverage was not that important" if some organizations already get an exemption.
The courts can also assess on a case-by-case basis which corporations really do operate on religious principles and thus deserve RFRA free-exercise protection. They will be the few Hobby Lobbies, not Exxon.
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The real purpose of the mandate was to minister to the secular left and the so-called coalition of the ascendant, which is why the White House has fought this case up to the High Court rather than simply creating a waiver for religious minorities. The tenor of oral argument suggested the Justices will rebuke this threat to a religiously diverse society, and they certainly should.
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