In the wake of the Supreme Court’s decision to uphold the 2010 health care law, a leading religious freedom law firm has new confidence in the future of its lawsuits against the federal contraception mandate.
Hannah Smith, senior counsel at The Becket Fund for Religious Liberty, explained that the arguments against the law that were recently rejected by the court are “separate and distinct legal challenges” from those being brought against the contraception mandate.
In a June 28 press call shortly after the Supreme Court announced its ruling, Smith said that in this case, the court was not asked to review the religious liberty issues surrounding the contraception mandate.
Rather, its decision dealt solely with the overarching law itself, particularly a requirement that virtually everyone must buy health insurance and a provision dealing with the expansion of Medicaid.
The high court upheld the Patient Protection and Affordable Care Act by a vote of 5-4, but did not rule on the contraception mandate, a separate requirement issued by the Department of Health and Human Services under the authority of the act.
This controversial mandate will require employers to offer health insurance plans that cover contraception, sterilization and early abortion-inducing drugs, even if doing so violates their consciences. Failure to comply will result in crippling fines.
The mandate has been criticized by members of various religions and political affiliations, including bishops from every diocese of the U.S., who warned that it could force Catholic hospitals, schools and charitable agencies to close down.
More than 50 plaintiffs – including nonprofit organizations, Catholic dioceses, religious universities and private business owners – have filed lawsuits against the mandate, arguing that it violates the religious liberty of individuals and organizations that object to its requirements.
If the court had struck down the health care law, the mandate would have disappeared by default. Since it did not, Smith explained, the legal battles will move forward, untouched.
However, she said, two statements in the June 28 decision hint at what the court’s future ruling on the contraception mandate could be.
She pointed to the majority opinion, penned by Chief Justice John Roberts, which states, “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.”
The opinion of Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan, was even more explicit, she said.
Ginsberg wrote, “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”
The direct mention of religious freedom as a reason to find such a mandate unconstitutional is a hopeful sign in the battle over the contraception requirement, Smith said.
She explained that these two statements are “essential” in suggesting that the court may strike down the contraception mandate if asked to rule on it, a positive indication for defenders of religious freedom.
Mark Rienzi, law professor at The Catholic University of America and senior counsel at the Becket Fund, added that it is “commonplace” for courts to find a regulation unconstitutional even when the law under which it was issued is constitutionally acceptable.
The Becket Fund, a non-profit law firm that works to protect religious freedom for all people, has paved the way in challenging the mandate, representing four different clients in filing lawsuits against it.
In a statement shortly after the ruling, Smith explained that the Becket Fund’s lawsuits will continue making their way through the court system.
“Never in history has there been a mandate forcing individuals to violate their deeply held religious beliefs or pay a severe fine, a fine which could force many homeless shelters, charities, and religious institutions to shut their doors,” she said.