Federal judge strikes down contraception mandate; calls healthcare law “totally ineffective”

The Archdiocese of New York "welcomes and applauds Judge Brian Cogan’s thoughtful decision"

From TownHall.com:

Yesterday, Judge Brian Cogan of the United States District Court for the Eastern District of New York, not only struck down Obamacare’s contraception mandate as applied to religious non-profit organizations, but also sent a strong signal that federal courts were losing patience with President Obama’s many stitches of executive power.

Previous courts had ruled against President Obama’s contraception mandate as applied to for-profit entities (see Sebelius v Hobby Lobby), but this was the first court to hold that participating in Obama’s scheme to provide free birth control is a substantial burden on the free practice of religion (specifically the Catholic Archdiocese of New York and its affiliate organizations).

The contraception mandate “directly compels plaintiffs, through the threat of onerous penalties, to undertake actions that their religion forbids,” Cogan wrote. “There is no way that a court can, or should, determine that a coerced violation of conscience is of insufficient quantum to merit constitutional protection.”

Judge Cogan wrote:

Finally, but very significantly, the Government’s belated revelation that the regulations do not even require plaintiffs’ TPAs to provide contraceptive coverage fatally undermines any claim that imposing the Mandate on these plaintiffs serves a compelling governmental interest. To demonstrate a compelling interest in remedying an identified harm, defendants must show “that the regulation will in fact alleviate these harms in a direct and material way.” Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664, 114 S. Ct. 2445, 2470 (1994). Here, the Government implicitly acknowledges that applying the Mandate to plaintiffs may in fact do nothing at all to expand contraceptive coverage, because plaintiffs’ TPAs aren’t actually required to do anything after receiving the self-certification. In other words, the Mandate forces plaintiffs to fill out a form which, though it violates their religious beliefs, may ultimately serve no purpose whatsoever. A law that is totally ineffective cannot serve a compelling interest.

Nor is the Mandate the least restrictive means by which the Government can improve public health and equalize women’s access to healthcare. “A statute or regulation is the least restrictive means if ‘no alternative forms of regulation would [accomplish the compelling interest] without infringing [religious exercise] rights.’” Kaemmerling, 553 F.3d at 684 (quoting Sherbert, 374 U.S. at 407). At this point, it is important to recall the nature of the burden on plaintiffs’ religion. The Mandate does not burden plaintiffs’ religion because it allows their employees to receive and use contraception at no cost; indeed, “it goes without saying that [plaintiffs] may neither inquire about nor interfere with the private choices of their employees on these subjects.” Korte, 735 F.3d at 684. Rather, the Mandate burdens plaintiffs’ religion by coercing them into authorizing third parties to provide this coverage through the self-certification requirement, an act forbidden by plaintiffs’ religion. [emphasis added]

Here is a PDF of the judge’s ruling.

The Archdiocese of New York released a statement yesterday:

The Archdiocese of New York welcomes and applauds Judge Brian Cogan’s thoughtful decision and order that holds that so-called non exempt religious agencies have religious freedom rights, and are therefore not bound by the Affordable Care Act’s requirement to provide in their health insurance plans coverage for contraceptives, abortifacients, and sterilization, as well as counseling as respects these objectionable products and services. 

Ruling in favor of all non exempt plaintiffs in the case – ArchCare, Cardinal Spellman and Monsignor Farrell high schools in the Archdiocese of New York, as well as Catholic Health Services of Long Island in the Diocese of Rockville Centre — the court held that the HHS contraceptive mandate of the Affordable Care Act violates the Religious Freedom Restoration Act.  The court granted summary judgment and a permanent injunction to these non exempt plaintiffs protecting them from enforcement of the contraceptive mandate.  
As part of its ruling, the court dismissed similar claims from the Archdiocese of New York and the Diocese of Rockville Centre, as the court ruled that they were already protected from the contraceptive mandate by virtue of being exempt religious organizations under regulations issued by HHS. 
At issue were the final mandate rules promulgated by HHS, which effectively split religious organizations into two classes: those who were protected under a narrow religious exemption – primarily dioceses and houses of worship – and those faith-based health care entities, charitable agencies, religious schools, and other faith-based entities which did not fit into this narrow definition established by the government.  As to this second class of faith based organizations, the final rules required these non exempt religious organizations to violate their consciences and cooperate in providing contraceptive coverage by “self certifying” their religious objections thereby triggering their third party plan administrators to provide the contraceptive coverage. In ruling that this self certification and so-called “accommodation” procedure violates federal law, the decision makes clear that these non exempt entities would suffer “injury” because “the Mandate renders them complicit in a scheme aimed at providing coverage to which they have a religious objection.”  
The court has correctly cut through the artificial construct which essentially made faith-based organizations other than churches and other houses of worship second class citizens with second class First Amendment protections.   Religious freedom is our “First Freedom,” guaranteed in the Constitution of the United States.  This decision wisely and properly affirms that this freedom must extend beyond merely being free to choose how we worship, and must include how we act in accord with our religious beliefs.

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About Carl E. Olson 1197 Articles
Carl E. Olson is editor of Catholic World Report and Ignatius Insight. He is the author of Did Jesus Really Rise from the Dead?, Will Catholics Be "Left Behind"?, co-editor/contributor to Called To Be the Children of God, co-author of The Da Vinci Hoax (Ignatius), and author of the "Catholicism" and "Priest Prophet King" Study Guides for Bishop Robert Barron/Word on Fire. His recent books on Lent and Advent—Praying the Our Father in Lent (2021) and Prepare the Way of the Lord (2021)—are published by Catholic Truth Society. He is also a contributor to "Our Sunday Visitor" newspaper, "The Catholic Answer" magazine, "The Imaginative Conservative", "The Catholic Herald", "National Catholic Register", "Chronicles", and other publications. Follow him on Twitter @carleolson.