Bench Memos

Ruth Marcus’s Hooey on HHS Mandate Cases

In “Hooey and hype over the birth-control mandate,” Washington Post columnist Ruth Marcus provides her guide to the pending HHS mandate cases. In her closing paragraphs, Marcus is somewhat more balanced than most liberal commentators have been. (Not that that’s saying a lot.) But it is Marcus who is dishing out the nonsense when she dismisses the HHS challengers’ arguments “hooey.”

Marcus contends that the legal argument that the Little Sisters of the Poor make against the Obama administration’s supposed “accommodation” is “hooey.” But she doesn’t bother to present their argument (see, e.g., page 8 of their Supreme Court reply brief) why signing the self-certification form isn’t the mere equivalent of an opt-out. Indeed, in the online version of her article, where the reader would expect that Marcus hyperlinks to the Little Sisters’ brief (“They claim …”), she instead links to a New Yorker rant against the Little Sisters. She somehow fails to inform her readers that some 19 of 20 cases have granted religious nonprofits injunctive relief against the self-certification accommodation.

Marcus’s brief claim that it is “even hooier” to argue that business owners and their closely held companies have religious-liberty rights under the federal Religious Freedom Restoration act is even sillier, for reasons that I have spelled out previously (including in this discussion of the Seventh Circuit’s ruling) and that Marcus doesn’t even begin to acknowledge.