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Monday, November 11, 2013

On killing the contraceptive mandate

Lost amid the Obamacare debacles that seem to blot all other news was the decision coming from the Court of Appeals for the District of Columbia. In a 2 to 1 decision the court shot down the contraceptive mandate. After the shooting it was bludgeoned to death by Justice Janice Rogers Brown. This lady was having none of the "war on women" propaganda which was essentially the gist of the government's case.
The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer-provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase— is a “compelled affirmation of a repugnant belief.” That standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not “substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met.
Obama frequently use the "freedom to worship" phrase instead of the textually correct "freedom of religion" and one assumes he means that this freedom be limited to attending to church as long as one leaves one's convictions there and not inconvenience the government when it is about the serious business of granting an entitlement at someone else's expense. But the daughter of an Alabama sharecropper argued that extending a personal right to an entitlement to have one’s employer pay for such services, even when they clearly violate the religious beliefs of the individuals involved, “trammels the right of free exercise.”
Well done and well written and thank you, Justice Brown.

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