Liberal justice's opinion may help fight against HHS mandate

Washington D.C., Jul 3, 2012 / 01:07 am

Challengers of the Obama administration's contraception mandate may have been handed a surprising advantage by the Supreme Court's liberal wing, in its partial dissent on the health care reform law.

"A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, (or) interfered with the free exercise of religion," Justice Ruth Bader Ginsburg wrote in a June 28 opinion supporting the law's "individual mandate."

The rule requiring citizens to buy insurance was upheld by the vote of Chief Justice John Roberts, who interpreted it as a use of federal taxing power. But four other justices, supporting the individual mandate without calling it a tax, signed on to Ginsburg's opinion supporting religious liberty.

In a new column for CNA, religious freedom attorney Kim Daniels says the four justices may have given "unlikely support" to opponents of another controversial provision in the health care law, which requires employers to cover abortion-causing drugs as well as contraception and sterilization.

"Justice Ginsburg describes the HHS (contraceptive) mandate to the letter: it's a mandate to pay for particular goods and services, and it interferes with the free exercise of religion," writes Daniels, a former counsel to the Thomas More Law Center and current coordinator of Catholic Voices USA.

While the justice's affirmation of free religious exercise is "basic constitutional law," Daniels says it was "notable that Justice Ginsburg chose to draw attention to this truism" using "language that opponents of the HHS mandate will no doubt highlight" as they challenge the contraception rule.

Justices Breyer, Kagan, and Sotomayor all joined Justice Ginsburg in her affirmation of religious freedom against government attempts to force the purchase of morally objectionable products.

The court's decision on the health care law, Daniel writes, "not only leaves the many legal challenges to the HHS mandate in force, it underscores their validity." Over 50 plaintiffs are currently involved in 23 lawsuits against the contraception mandate.

Daniels' essay explains how the contraception mandate violates the U.S. Constitution, by exempting some religious employers – according to a narrow set of criteria – but requiring others to provide insurance coverage for products and services they oppose.

"Now that the constitutionality of the Affordable Care Act is no longer in question, it's time for the administration to revisit its divisive efforts to coerce religious employers into facilitating insurance coverage for goods and services that violate their faith," the Catholic Voices USA coordinator writes.

Her column can be viewed in full at: http://www.catholicnewsagency.com/column.php?n=2212.