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DOJ: Defending Birth-Control Mandate Not Essential in Shutdown



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The Obama administration clearly believes that nothing can be allowed to stop Obamacare, but it can’t make up its mind whether abortion pills are essential for women’s safety under that law.  

On Tuesday, the Department of Justice filed multiple requests to delay cases challenging Obamacare’s abortion-pill and birth-control mandate. DOJ attorneys stated that it and the Departments of Health and Human Services, Labor, and Treasury cannot defend the mandate during the shutdown because that work is not an essential activity needed to protect “safety.” 
 
This is an ironic position from the Obama administration. For two years it has insisted that the abortion-pill mandate satisfies what’s known as the “compelling interest” test, which only applies to the most grave and paramount duties that a government must pursue to survive. This means the administration has continually ranked coerced birth-control coverage among the most important functions of government. 
 
The Obama administration has never been able to prove that merely having the freedom to decide whether to cover other people’s abortion pills and birth control would cause some kind of catastrophe. But now the Obama administration is backhandedly admitting that the abortion-pill mandate is not the highest priority of government in the first place. If it were, defending it would not stop during a shutdown. 
 
But it will stop, because defending this mandate is not, as it turns out, “essential” to women’s “safety.” The Obama administration has now conceded this in court. 

In a double fit of irony, the DOJ is arguing that even though their defense of the mandate cannot continue during the shutdown, the courts should continue to allow Obamacare itself and its mandate to continue during the shutdown. This is the opposite of what the House of Representatives asked the Senate to do—and it’s because the DOJ wants to let the government shut down while Obamacare continues. 
 
The Obama administration often says that Obamacare is the law, but it is putting Obamacare itself above the law. Obamacare is now a “super law” that trumps all laws and constitutional rules about how society will work. Obamacare can rewrite itself without Congress’s approval if parts of it don’t work. It can illegally fund abortion health plans for members of Congress who aren’t supposed to get extra subsidies for their insurance. It can violate the Religious Freedom Restoration Act and the First Amendment without any need for the government to show up in court to defend it. And it can continue during a government shutdown because it is higher than the government itself. 
 
Obamacare is no longer the law but a license for bureaucrats to ignore the law. Proponents don’t just think abortion pills, birth control, and Obamacare’s other coercive measures satisfy a compelling government interest; they think it doesn’t matter whether those interests are compelling. All that matters is the president wants to coerce people under Obamacare, so no one has a right to object. 
 
— Matt Bowman is senior legal counsel with Alliance Defending Freedom, which represents several clients in lawsuits against the Obama administration’s abortion-pill mandate.



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