About that Contraception Mandate… NO!

Well, it’s another tough day to be the Imperial President.

Judge Brian Cogan of the United States District Court for the Eastern District of New York took an axe to the President’s signature “accomplishment”.

You’ll remember the flap over the slut, Sandra Fluke’s comments to the effect that women who could afford to go to Georgetown Law School couldn’t afford contraceptives so you needed to pay for them through the guaranteed benefits in their healthcare plans. That was phase 13,549 of the Republican War on Women.

Looks like Judge Cogan is the artillery for that particular War.

We’ve seen previous rulings go against the Imperial Won when a federal judge struck down the mandate as applied to for-profit entities like Hobby Lobby, but this is the first decision to hold that the free exercise of religion is Constitutionally protected from the free exercise of sex.

Let’s stop for just a moment and emphasize that nobody is suggesting that contraceptives shouldn’t be available to any adult who want to purchase them, nor should any adult be unable, under the law, to use contraceptives. The only question is whether the government has the right to obligate people who have a moral issue with contraception and abortion to pay for other people’s practice of same.

Judge Cogan not only struck down the mandate (which will, of course, be appealed) he used his judicial axe generally on the administration. The administration’s argument was a three legged stool and the good judge cut all of them off.

Leg 1: There is a compelling interest in the uniform enforcement of the mandate.

Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and “religious employers” like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs. 

Leg 2: Obama’s last minute claim that Obamacare’s contraception mandate, as implemented for religious organizations, did not, in fact, mandate contraception.

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. 

Leg 3: The government’s argument that Obama’s failure to convince Congress to “fix” Obamacare authorized him to enforce his contraception mandate in the manner he did.

Nor is the Mandate the least restrictive means by which the Government can improve public health and equalize women’s access to healthcare. … The Government could provide the contraceptive services or insurance coverage directly to plaintiffs’ employees, or work with third parties – be it insurers, health care providers, drug manufacturers, or non-profits – to do so without requiring plaintiffs’ active participation.
[...]

The Government first argues that the alternatives above are infeasible because the defendants lack statutory authority to enact some of them. This argument makes no sense; in any challenge to the constitutionality of a federal law, the question is whether the federal government could adopt a less restrictive means, not any particular branch within it. It would set a dangerous precedent to hold that if the Executive Branch cannot act unilaterally, then there is no alternative solution. If defendants lack the required statutory authority, Congress may pass appropriate legislation. 

13-1217 - Che ObamaRead that last sentence in the context of the Imperial President’s “Dreamer” addition to the immigration law simply because he couldn’t convince the Congress to act. Or in the context of his continual rewrites of ObamaCare, his self-described “Law of the Land”.

We are of the growing opinion that not only will 2014 be a tough year for the President, he may not even manage to eke out a decent week during 2014. Mr. Obama may have overstepped the bounds of the inconvenient Constitution thingy to the extent that he could be lining up nails for the coffin for Progressivism.

It will be an interesting year.


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Posted by on December 18, 2013.
Filed under Obamacare.
Michael Becker is a long time activist and a businessman. He's been involved in the pro-life movement since 1976 and has been counseling addicts and ministering to prison inmates since 1980. Becker is a Curmudgeon. He has decades of experience as an operations executive in turnaround situations and in mortgage banking. He blogs regularly at The Right Curmudgeon, The Minority Report, Wizbang, Unified Patriots and Joe for America. He lives in Phoenix and is almost always armed.

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  • Lawrence Westlake

    Cogan is a W. Bush nominee who was confirmed before the Dems took over the Senate. Holding control of political institutions has ripple effects. And, yes, even Rockefeller Republicans like Cogan are far better options than their left-wing brethren. Regarding the contraception mandate, of all the horrific components of Obamacare that one arguably takes the cake. In addition to the obvious 1st Amendment problems (obvious of course to anyone other than idiot leftists (BIRM)) the practical fact of the matter is that patently it’s ludicrous for federal taxpayers nationally to subsidize contraceptives. Condoms are dirt cheap and various public interest groups literally hand them out for free. And if push really does come to shove, and the likes of Sandra Fluke simply cannot obtain contraceptives, they should stop slutting out in the first place or they should dish out more blowjobs. That this non-issue actually became a keynote item in a presidential campaign(!) illustrates just how far towards Idiocracy as a nation we’ve fallen.

  • GarandFan

    Next fall, when Democrats are up for re-election, they can take comfort in the words of King Barack the Magnificent; “Don’t worry! You have ME!”

    • Retired military

      Think that will protect against the tar and feathers or being ran out of town on a rail.

      Remember that Obama is the only thing between them and the pitchforks.