Re: Seventh Circuit Ruling Against HHS Mandate

In her account of the Seventh Circuit’s ruling, the everunreliable 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.)

Most Popular

U.S.

The Gun-Control Debate Could Break America

Last night, the nation witnessed what looked a lot like an extended version of the famous “two minutes hate” from George Orwell’s novel 1984. During a CNN town hall on gun control, a furious crowd of Americans jeered at two conservatives, Marco Rubio and Dana Loesch, who stood in defense of the Second ... Read More
Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More