Saturday, July 28, 2012


A district court in Colorado issued a preliminary injunction yesterday forbidding the federal government from enforcing its abortion and birth control insurance mandates against a private employer.  You can read the opinion itself here, and the briefs of the parties here.

The issues in the religious exemption cases are entirely different from the recent Supreme Court decision on the Commerce Clause and Tax justifications for the law.  The religious exemption cases do not attack Congress' power to pass the law, generally.  These cases attack the application of the law to people who have religious beliefs that would be violated by complying with the law.

The judge ruled that the freedom of religion “questions going to the merits . . .[are] so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation[.]”  The judge held that, given the alternative means for providing birth control and abortion coverage for women (such as free government abortion and birth control benefits), the government failed to meet its burden of demonstrating that its mandate was the least restrictive means of furthering its purposes. 

The judge also held that given the numerous exemptions and grandfathered provisions in the health care mandate, the government had not proven that it had a compelling interest in uniform application of the mandate.  In plain words, the judge said that given the number of exemptions already in place, allowing one more employer to avoid providing birth control or abortion coverage was not going to result in a system crash.

The opinion deals with one employer in one federal district.  Nevertheless, the opinion has momentous implications, because the logic of the opinion applies to other people who want to run their businesses without violating their church's teachings on abortion and birth control.  The opinion is a lucid explanation of why the preliminary injunction should issue.  Because it was written by a Carter appointee, political hatchet men will have a tougher time slandering the judge as a conservative bigot. 

Once again, a court holds that Nancy Pelosi's "are you kidding?" mockery of the notion that Obamacare might be unconstitutional was misguided.  As the court said, the issues are "serious, substantial, difficult and doubtful."

We live in interesting times.

1 comment:

  1. So... common sense could bubble up in the most unlikely places? That is indeed interesting!