In her recent remarks to the Second Circuit Judicial Conference, Justice Ginsburg stated that the “question presented” in the HHS mandate cases is: “Can Congress lawfully confine exemptions from contraceptive coverage to churches and nonprofit religion-oriented organizations?” (Pp. 8-9 (emphasis added).) But the HHS mandate, along with its narrow exemption for houses of worship and its (supposed) accommodation for religious nonprofits, is a creation of the regulatory bureaucracy, not of Congress.
The agencies that jointly adopted the HHS mandate were implementing an open-ended statutory provision, see 42 U.S.C. 300gg-13(a)(4). Congress itself did not say anything in the provision about “contraceptive coverage,” much less “confine exemptions from contraceptive coverage to churches and nonprofit religion-oriented organizations.”
Whether anything turns on this elementary distinction is open to debate. (A noteworthy question from Justice Kennedy rested on the distinction.) But if Ginsburg doesn’t understand this basic point, I wonder how many of the finer points of the case have escaped her.