Two More Colleges Sue Over Contraceptive Mandate

Previously I reported that two small colleges, Belmont Abbey in North Carolina and Colorado Christian University, have filed suit against Kathleen Sebelius and HHS over the contraceptive mandate. Two more colleges, neither of them Catholic, have filed a similar suit. Both of the recent suits have been filed by the Alliance Defense Fund on behalf of Geneva College in Pennsylvania affiliated with the Reformed Presbyterian Church of North America, and Louisiana College, a small Southern Baptist college.

The colleges take issue with the mandate’s requirement to provide health insurance coverage of drugs like Plan B and ella, which can sometimes cause abortions in early pregnancy, at no cost to the insured. To effectively subsidize chemical abortions violates the colleges' deeply held moral and religious beliefs and runs roughshod over the institution’s religious liberty and conscience rights.

Related to this legal action Michael Barone has a great post on the Obamacare case before the Supreme Court. The Court has announced it will decide four issues. Most of us knew it would decide the constitutionality of the individual mandate and the expanded Medicaid mandate on the states and decide whether to strike down the entire law if either of the two mandates are found to be unconstitutional but the fourth issue is an Obamacare surprise from the Court. It found its way into case as an amicus brief filed in the Eleventh Circuit Court of Appeals by a Vanderbilt law professor, James Blumstein. Blumstein notes that the states must expand Medicaid to cover all citizens earning up to 133% of the poverty level in 2014 or forfeit all federal Medicaid funds. To Blumstein that conflicts with established law.

“In 1981 the Supreme Court in Pennhurst State School and Hospital v. Haldermann ruled that while the federal government could require states to fulfill specific conditions in order to receive federal dollars under aid programs like Medicaid, the federal government could not sharply change those requirements. These programs are in the nature of a contract, the Court said, and terms which the federal government could demand at the formation of such a contract could not be added as a requirement by modification of the contract. In a contract case, for example, sailors could demand a certain wage before leaving port to which the shipowner could agree. But it’s unfair for the sailors to modify that by demanding much more money when the ship has reached the fishing grounds. Similarly, Blumstein argues, Obamacare’s substantial changes in Medicaid, made after states have become dependent on federal dollars to maintain their existing programs, constitutes an unfair modification of a preexisting contract. The states have acted in reliance on the previous contract and done things they would not otherwise have done, leaving them vulnerable to grave damage if the rules are changed in the middle of the game.”

In their reach for expanded federal power through Obamacare, Obama and the Democrats inadvertently bid into a very high stakes game. The federal government regularly coerces the states with the threat to withhold funds on everything from seat belt laws to school lunches. A decision against Medicaid coercion might cast a pall over the validity of all such existing legislation and would make it more difficult if not impossible for Congress to pass such legislation in the future. This would be a serious curtailment of federal power!