Here, the administration’s repeated claims about the popularity of contraceptive use, and the wide variety of sources from which contraceptives are already available, belie any claim that there is an access problem in the first place.
Fourth, even if there were some problem with access to what Secretary Sebelius calls “the most commonly taken drug in America by young and middle-aged women,” there is no reason to think that the “least restrictive means” of addressing that problem would be to force unwilling religious institutions to provide access. As the government demonstrates each year through its Title X programs, it is perfectly capable of distributing contraceptive drugs directly when it wants to. And even so, the Supreme Court just last term explained that “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.”
Fifth and finally, the Times claims that the president “put the burden on insurance companies” to provide the drugs for free “with no employer involvement.” This is the “accommodation,” as the president described it in his February press conference. There are countless problems with this alleged compromise, but I will flag just two. First, it isn’t the law. All the administration has done is publicly announce that it will think about a compromise along these lines — but it hasn’t done anything other than brainstorm out loud about it. Second, there is no legal basis in Obamacare or anywhere else for simply declaring that insurance companies must provide services that are not covered in policies purchased by someone.
Our Constitution creates a republic, not a kingdom, and it has long been established that the president lacks the authority to take private property by fiat, as Professor Michael Stokes Paulsen has recently explained
. So even if the “compromise” solved the problem for religious objectors (and for most it would not) and even if the costs would not be passed on to religious employers (which they very likely would be), the plan is not legal. This might explain why the administration has not actually cited any legal authority for it and conveniently has delayed its implementation until after the next election, at the earliest.
In short, when the Times finally decided to give the lawsuits prominent coverage (or, rather, to give prominent coverage to its own opinions about those lawsuits), it produced an editorial chock-full of errors about the mandate and religious-liberty law. Indeed, the editorial reads as if the Times did not even bother to consult with any lawyers before opining about the strength of the religious-liberty lawsuits. Sadly, there seems to be a lot of that going around these days, as Secretary Sebelius recently admitted in congressional testimony that she issued the mandate without considering the controlling law and without getting an opinion from the Department of Justice.
We can be thankful that these questions will eventually be decided in courtrooms rather than presidential press conferences and newspaper editorials — and that the judges deciding the cases will actually check the law before issuing their opinions.
— Mark L. Rienzi is senior counsel at the Becket Fund for Religious Liberty (which has filed four lawsuits against the mandate) and professor of constitutional law at the Catholic University of America. His affiliation with Catholic University — which also recently filed suit against the mandate — is provided for identification purposes only.