Re: Seventh Circuit Ruling Against HHS Mandate

by Ed Whelan

In her account of the Seventh Circuit’s ruling, the ever-unreliable Dorothy Samuels of the New York Times asserts:

Among the federal circuit courts that have spoken so far, three – the Seventh, Tenth and D.C. Circuits – have ratified the dangerous view that secular, profit-making private employers can claim a religious exemption from the Affordable Care Act….

If Samuels is using the phrase “private employers” to mean corporations, then she is incompetently misstating the holding of the D.C. Circuit (and she is also overstating the holdings of the Seventh and Tenth Circuits, which are limited to closely held corporations).

If, on the other hand, she is using the phrase “private employers” to include the individual owners of closely held corporations, then she is treating the corporations as the alter egos of those individual owners—in which case it ought to follow very easily that the individual owners can pursue relief in their individual capacities for any burdens imposed on their religious liberty in how they operate their corporations.

As for Samuels’s tendentious phrasing: The plaintiffs in those (and other) cases are seeking to enforce their rights under the federal Religious Freedom Restoration Act, not to claim some amorphous “religious exemption” from Obamacare. And, even on the (dubious) assumption that there is a compelling governmental interest in marginally increasing access to contraceptives, there is nothing “dangerous” about vindicating the employers’ rights, as the government has ample alternative means of providing contraceptives to their employees. (See part 3 of my law-review essay on RFRA and the HHS mandate.)

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