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: