It was all too predictable that the filing of twelve different lawsuits by 43 different Catholic entities was almost completely ignored by traditional news outlets. One would think that this type of strong, coordinated legal attack in federal court, filed by one of the nation’s leading law firms (Jones Day) on behalf of the nation’s largest single religious denomination, would be deemed a top news story. The networks apparently disagreed — as did the New York Times, which ran the story on page A17.
But then the editorial writers at the Times eventually did grant the lawsuits prominent coverage — to criticize the Catholic Church for defending its rights. Their lead editorial on May 27 concludes that the mandate doesn’t present any actual threat to religious liberty. In their view, the “real threat to religious liberty” instead “comes from the effort to impose one church’s doctrine on everyone.”
The Times is wrong in every conceivable way about the mandate, religious-liberty law, and the lawsuits.
First, of course the Church’s lawsuits do not seek to “impose one church’s doctrine” on anyone, much less “everyone.” The question is not whether contraceptives and abortion-inducing drugs will remain legal and available — it is whether religious organizations can be forced to provide free access to them. No one is forced to work for a Catholic institution. And those who do are perfectly free to get these drugs on their own, for free from the government, or from the many sources that willingly distribute them. Indeed, in no other context has anyone ever suggested that an employer’s failure to distribute an item for free is “imposing doctrine” on anyone. Catholic institutions also do not give out pornography, Big Macs, or trips to Disneyland. Failure to provide these things for free does not impose anything on anyone or restrict anyone’s freedom in any way. Overheated claims to the contrary cannot be taken seriously.
Second, the Times suggests there is something impermissible about the lawsuits’ asking for exemptions from “generally applicable” laws. It is hard to imagine anyone calling Obamacare “generally applicable” with a straight face. Anyone who watched the process leading to the law’s passage knows that it is larded full of special treatment and favors for different groups to secure their support. And since passage, the administration has granted thousands of waivers from the law’s provisions. Worse, the government freely admits that grandfathered plans (which are excluded to make good on the president’s political promise that “if you like your plan you can keep it”) will cover more than a hundred million people yet remain completely exempt from the mandate. In short, Obamacare is about the least generally applicable law you can imagine.
Third, even if the mandate were generally applicable, federal law is clear that an exemption is required even from generally applicable laws unless imposing a burden on religion is the “least restrictive means” of advancing a “compelling” government interest. The Times asserts, without explanation, that the mandate meets this demanding standard “by promoting women’s health and autonomy.” But the compelling-interest test is not satisfied simply by naming some generally important interest — instead, the Court has explained that this test is “the most demanding test known to constitutional law” and requires the government to identify an “actual problem” in need of solving.
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.