Regarding birth control, judge issues the weirdest anti-Obamacare ruling yet

Supporters of the Affordable Care Act rally following a victory at the Supreme Court in June, but the challenges aren't over.

Supporters of the Affordable Care Act rally following a victory at the Supreme Court in June, but the challenges aren’t over.


It was clear from the inception that the Supreme Court’s 2014 Hobby Lobby ruling wouldn’t end efforts to undermine the contraceptive mandate of the Affordable Care Act. Justice Ruth Bader Ginsburg, in her dissent to the decision allowing non-religious businesses to opt out of the mandate by asserting a religious objection, warned that the court “has ventured into a minefield.”

Another mine has just detonated. In a remarkably incoherent and injudicious opinion favoring the anti-abortion organization March for Life, U.S. District Judge Richard J. Leon of Washington, D.C., ruled Monday that the religious rights of employees of a secular anti-abortion organization are infringed because they’re required to buy health insurance that covers contraception, even though nothing forces them to actually acquire contraceptives if they don’t wish.

Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here. The Equal Protection Clause is found in the Fourteenth Amendment, not the Fifth; it’s applied to the federal government by the Fifth, but via that amendment’s Due Process Clause. Shouldn’t a federal judge know this?)

Leon’s ruling goes well beyond other court decisions covering objections to the contraception mandates by granting opt-out rights to anyone asserting a philosophical, rather than more strictly religious, objection. This opens the door to nearly infinite demands for custom-designed health insurance, which is tantamount to no insurance system at all.

Observes Timothy Jost, an expert on healthcare law: “It is hard to see how we can have a uniform system of insurance coverage if any employer can opt out of a regulatory requirement for its own philosophical reasons and any insurer that wants to sell individuals coverage that complies with their religious or philosophical beliefs can opt out of regulatory requirements that would otherwise apply. ... What if someone claimed that his philosophy prohibited him from purchasing a plan that also covered other people with preexisting conditions?”


Several aspects make the March for Life case unusual. The organization isn’t a church, a religious organization or a business privately owned by individuals or families asserting religious scruples. These are the categories of employers previously granted accommodations to the contraception mandate by the Obama Administration or the courts. Churches are exempt from the contraception requirement under the ACA; in the other cases, the mandate is shifted from the employers to their insurers, who are required to provide contraceptives to the employees, sometimes at the government’s expense.

In this case, moreover, the plaintiffs include two employees of March for Life. (One, Jeanne F. Monahan, actually is the organization’s president.)

They assert that the ACA forces them into “untenable choices,” including “participating in a health plan that provides abortifacient coverage for themselves and their families against their religious and moral beliefs.” Abortifacients are medicines that abort fetuses, but not all birth-control methods do so.

The administration, in its reply brief to the lawsuit, had argued that the plaintiffs’ position carries the concept of a burden on one’s religious beliefs rather far: “It is not a substantial burden on a person’s religion to have a health insurance plan that includes coverage of services that she or her family members will not use.” Like Jost, the administration warned that “insurance markets could not function if health plans had to be tailored to the specific needs and desires of each individual plan participant and beneficiary.”

Judge Leon, a George W. Bush appointee, didn’t buy it. He seems to be arguing that because religious organizations are granted exemptions from the contraception mandate because their employees are unlikely to use it (“to put it mildly,” he writes), secular organizations staffed by abortion opponents should have the same right in order to be granted equal protection under the law.

He questions the administration’s assertion that religious belief is what’s protected by the existing exemption and accommodations — that “misses the point entirely!” he writes. (Leon’s opinion is peppered with exclamation points, not a sign of thoughtful debate.) What the government “claims to be protecting is religious beliefs, when it actually is protecting a moral philosophy about the sanctity of life.”

Leon calls the government’s position “a thinly veiled attack” on the plaintiffs’ religious beliefs. He accepts that merely being offered the opportunity for contraceptive coverage, as March for Life’s employees are, makes them “participants” in a system that violates their beliefs. As for the government’s position that allowing all customers to pick and choose which mandates their health plans will cover would create an administrative morass, his response is: “Please!” (There’s that exclamation point again!)

It’s hard to assess how far Leon’s opinion will carry the March for Life case. Liberal legal commentator Ian Millhiser, who has closely followed the courtroom battles over the ACA, calls it “the wackiest anti-birth control court decision to date,” and he isn’t far wrong. But that doesn’t mean it won’t percolate up to the Supreme Court as some point. When Ginsburg warned of a minefield out there, she knew whereof she spoke.

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