Guest Columnist HHS mandate challengers receive unlikely support

Jul 3, 2012

Who would have thought that Justice Ruth Bader Ginsburg’s dissenting opinion in Thursday’s healthcare decision would help opponents of the so-called contraceptive mandate?

Championed by HHS Secretary Kathleen Sebelius, that mandate requires most employers to provide free coverage for contraceptives, abortion-causing drugs, and sterilizations even when doing so violates their deeply-held religious beliefs.  Often called the “HHS mandate,” this regulation was not before the court this time around, and the court’s ruling did not affect it at all.  It remains in force and under challenge; some 56 plaintiffs have filed suit against it in 23 separate cases across the country. 

In her separate opinion – joined by Justice Sotomayor, Justice Breyer, and Justice Kagan – Justice Ginsburg notes that beyond the provisions directly at issue in the healthcare case, other constitutional provisions limit the power of the federal government: “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.” (i) Justice Roberts makes a similar point in the majority opinion. (ii)

To be sure, this is basic constitutional law: the Constitution grants limited powers to the federal government, and even when the government acts within those powers, the Bill of Rights prevents it from taking certain other actions – restricting speech, say, or prohibiting the free exercise of religion. But it’s notable that Justice Ginsburg chose to draw attention to this truism, and it’s language that opponents of the HHS mandate will no doubt highlight.

For Justice Ginsburg describes the HHS mandate to the letter: it’s a mandate to pay for particular goods and services, and it interferes with the free exercise of religion.  As the University of Notre Dame has argued in its lawsuit challenging the HHS mandate, the regulation violates the Free Exercise clause because religious exemptions are made for some religious institutions – for example, those whom the government has decided are religious enough to qualify for its narrow exemption – but not for other religious institutions who cannot in good conscience provide coverage for contraceptives, abortion-causing drugs, and sterilization. 

The mandate likewise violates the First Amendment’s Establishment Clause by excessively entangling the government in the affairs of religious institutions: in order to determine whether a religious group qualifies for an exemption, the government would have to intrusively inquire into the religious beliefs of those whom the group employs and serves.  And beyond these constitutional concerns, there’s a strong case that the mandate violates an important statute, the Religious Freedom Restoration Act, as well.

In other words, yesterday’s decision not only leaves the many legal challenges to the HHS mandate in force, it underscores their validity.  These 23 lawsuits – including 12 coordinated cases filed by 43 diverse Catholic institutions – continue to move forward. 

These lawsuits mean strong legal pressure against the mandate will persist: the administration’s response in these cases has been weak, and the plaintiffs will no doubt now redouble in their efforts to vindicate their constitutional rights.

Beyond these legal efforts, public pressure against the HHS mandate is building. Catholics around the country are engaging in a two-week “Fortnight for Freedom” to focus attention on the serious religious liberty issues at stake.  And in a clear sign that the mandate is on the ropes, the administration has lost its most prominent Catholic supporter. The Catholic Heath Association, a key administration ally in the passage of the Affordable Care Act, recently announced that the government had failed to resolve the serious religious liberty concerns raised by the HHS mandate. 

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.  It’s time for the administration to offer a real compromise on the HHS mandate, one patterned after common-sense conscience protections found throughout federal and state law and in keeping with our country’s longstanding bipartisan consensus in favor of robust religious liberty protection.  Let’s turn the page on long and costly legal battles, and return to common-sense constitutional principles. 

(i) 567 U.S. ____ (2012) (Ginsburg, J., dissenting), slip op. at 29.

(ii) 567 U.S. ____ (2012), slip op. at 40. (“Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution”).