The Corner

DOJ to Court: Please Look the Other Way on the Mandate

Yesterday, the Obama administration filed its first official response to a federal lawsuit brought by the Becket Fund for Religious Liberty challenging the controversial contraception mandate. This was its first opportunity to explain to the court and the country why the mandate is not illegal and unconstitutional. So what did the administration say?

Tellingly, it did not argue that the mandate is legal or constitutional. Instead, it asked the court to duck the issue because the administration might “propose and finalize changes to the regulations” at some unspecified date in the future.

In other words, the administration has lost its appetite for defending the mandate as written. Its only hope is to ask the court to look the other way based on vague assurances that it might “fix it” in the future.

These assurances were announced at President Obama’s February 10 press conference, where he said that private insurers might be forced to provide contraceptive coverage for free. But that announcement is not legally binding and does nothing to change the law on the books, which is already harming religious organizations like Belmont Abbey College. Last time we checked, courts decide cases based on the law on the books — not based on what the government says the law might be in the future.

Even if the administration changed the mandate, its proposed changes are no good. As a diverse coalition of over 300 scholars and religious leaders have explained, forcing religious organizations to contract with an insurance company, which will then cover its employees’ contraception for free, is morally and religiously “unacceptable” because it still forces many religious organizations to violate their religious beliefs. It is also an unprecedented “assault on free enterprise” because it would allow the government to force private companies to hand out goods and services for free.

The fact that the government is trying these kinds of delay tactics shows it hasn’t learned from recent failures. It tried the same thing in the “individual mandate” litigation that’s now before the Supreme Court. Early on, it told a lower court that it shouldn’t get involved because the mandate wouldn’t go into effect until 2014. That failed miserably then, and now the government is trotting out a variation on the same losing theme.

At the end of the day, the government’s “look the other way” argument has no chance of legal success. Like its empty promise of “accommodation,” it is a transparent delay tactic, designed to avoid a decision on the mandate until after the election.

— Luke Goodrich is deputy general counsel at the Becket Fund for Religious Liberty.

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