Constitutional Opinions

Winning the ‘War on Women’

The contraception mandate goes to court.

By 11.25.13

When the Supreme Court is in session, one or two afternoons each week are reserved for closed-door conferences during which the justices discuss petitions for writs of certiorari. These petitions, in ordinary English, are requests by litigants for the Court to review cases that have been inconclusively adjudicated by lower courts. Such requests often involve high profile public controversies, and those scheduled for discussion on Tuesday fit comfortably into that category. Tomorrow, the justices will confer about Hobby Lobby v. Sebelius, Conestoga Wood v. Sebelius and Autocam v. Sebelius, all of which challenge the constitutionality of Obamacare’s contraception mandate.

That the justices will discuss these cases does not by any means guarantee that they will agree to hear any of the three. The Court has several options, as Geoffrey Surtees at the American Center for Law and Justice points out:

(1) it can deny all three petitions and let the decisions of the lower courts stand (hardly likely); (2) it can decide to grant one or more of the petitions; (3) it can wait to decide pending further deliberation; or (4) wait to decide until other petitions involving the HHS mandate have been fully briefed.

It is risky, of course, to predict what the all-too-capricious Court will do. Still, there are several reasons to believe that it will “grant cert” on at least one of these petitions.

First, an important criterion the justices use to decide whether to intervene in any dispute involves inconsistency in the lower courts. And, in those lower courts, the judges have been all over the map on the contraception mandate. The score is mounting up against the government, but it has nonetheless had several wins. Second, in the Hobby Lobby case, the plaintiffs and the Obama administration have both petitioned the Court to take the case. The latter was forced to do so after the Tenth Circuit Court of Appeals agreed with the company’s owners that the contraception mandate restricts their free exercise rights. It isn’t likely that the Court will deny the administration’s petition.

Finally, there is virtually no way for the Court to avoid this controversy. In the unlikely event that the justices deny the three petitions now before the Court, there will be fresh petitions pursuant to recent rulings on the mandate. On November 1, the D.C. Circuit Court of Appeals struck down the mandate in Gilardi v. HHS. A week after that ruling, the Seventh Circuit Court of Appeals ruled against the Obama administration in Korte & Luitjohan Contractors v. Sebelius. In both cases, the judges concluded that the contraception mandate runs afoul of the First Amendment and the Religious Freedom Restoration Act (RFRA). The Obama administration won’t fail to appeal those decisions.

Interestingly, the majority opinions of the D.C. Circuit Court of Appeals and the Seventh Circuit Court of Appeals were both written by women. On behalf of the majority in the D.C. Circuit, Judge Janice Rogers Brown wrote that the mandate would force the plaintiffs in Gilardi v. HHS to choose between bankruptcy and violating their religious beliefs: “They can either abide by the sacred tenets of their faith … or they become complicit in a grave moral wrong.” Writing for the majority in the Seventh Circuit, Chief Judge Diane S. Sykes said, “The government draws the line at religiously affiliated nonprofit corporations. That line is nowhere to be found in the text of RFRA or any related act of Congress.”

That these opinions were written by female judges tends to undermine the “war on women” talking point so often recited by the White House and its media toad eaters in discussions of the contraception mandate. This meme becomes more ridiculous, if that is possible, in any discussion of Hobby Lobby v. Sebelius. The primary plaintiffs in that lawsuit, David and Barbara Green, don’t even object to contraception. Hobby Lobby’s employee insurance plan covers birth control. The only war the Greens are fighting is against an out-of-control administration bent on restricting their religious liberties. 

All of which suggests that Hobby Lobby offers the Supreme Court its best opportunity to produce a clean ruling on the real issue here. On the other hand, Conestoga Wood and Autocam are legitimate lawsuits that ultimately ask the same question: Can the government strip individuals of their religious rights simply because they own a controlling interest in a corporation? In the end, Obamacare’s contraception mandate is arguably more dangerous than its insurance mandate. Assuming the justices agree to hear one of these cases, let’s hope they manage to avoid making a hash of their ultimate ruling this time.

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About the Author

David Catron is a health care consultant and frequent contributor to The American Spectator. You can follow him on Twitter at @Catronicus.