Court Strikes Down Contraception Mandate
No, not that contraception mandate. But this decision could help in the fight against that mandate.
Yesterday, a federal court struck down a Washington state law that requires pharmacies to dispense the morning after pill, or "Plan B." As I explained in an earlier post, the lawsuit (Stormans v. Selecky) was filed by the owners of a family pharmacy called Ralph’s in Olympia and two individual pharmacists, Rhonda Mesler and Margo Thelen. They objected to Plan B because of its ability to work as an abortifacient (see Paul Rahe's post below).
The legal hurdle was overcoming the Supreme Court’s 1990 decision in Employment Division v. Smith, which holds that the right to “free exercise” of religion can be abridged by “neutral and generally applicable” laws. "Neutrality," however, is a slippery concept in constitutional law. In Massachusetts, for example, it is considered "neutral" for a school district to mandate that kindergartners learn about gay marriage, notwithstanding the parents' objections. Here, the judge correctly noted that the law is not neutral because it contains all sorts of exemptions for secular conduct but not for religiously-motivated conduct and thus amounts to an “impermissible religious gerrymander.”
When the HHS contraception mandate comes to Court, it is even less likely to succeed. As a federal regulation, it is subject to the Religious Freedom Restoration Act, which subjects all burdens on free exercise to "strict scrutiny," even facially neutral laws (see Ed Whelan's essay here). But if, for some reason, a court has to reach the constitutional issue, this Washington decision is a great precedent.
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Comments:
Re: Court Strikes Down Contraception Mandate
Adam, you have made my day.
Jul '11
Re: Court Strikes Down Contraception Mandate
Thanks for the follow up Adam. I was hoping this decision would go this way! The issue has little to do with abortifacient medications in my opinion and far more to do with freedom.
Dec '10
Re: Court Strikes Down Contraception Mandate
It almost feels as though the slack tide is over and we're feeling the turn of the water.
Jun '10
Re: Court Strikes Down Contraception Mandate
Careful. That's when the tsunami hits.
OK. I too feel a small tug of confidence.
Aug '11
Re: Court Strikes Down Contraception Mandate
Excellent news, but my depression runs so deep it's going to take a Tsunami of good, good, good vibrations.
Re: Court Strikes Down Contraception Mandate
I'll keep my optimism guarded until we see what happens, but this is a big step in the right direction. Public pressure helps, too. Notwithstanding the fact that the judiciary is - and ought to be - independent, many judges are reluctant to defy overwhelming public opinion. That's why the 9th Circuit reversed course on the Pledge of Allegiance a couple years ago, holding that the words "under God" do not violate the Establishment Clause (the Court had held otherwise a few years before that).
Nov '10
Re: Court Strikes Down Contraception Mandate
This decision is of major importance, because it illustrates how the liberals have boxed themselves in on the question of fundamental rights under the 14th Amendment. In order to keep “the right to refuse to participate in the taking of a life” off of "the limited list of constitutionally-protected fundamental rights it has recognized," the Court will have to limit the list to where it is now. Which, of course, has already happened as a practical matter.
The "right to life" is the key, of course, but the liberals will never let the Court go there. Still, the “the right to refuse to participate in the taking of a life” cannot possibly be allowed to make it to that list either, for several reasons. Obviously, if the Court recognizes that right, it begs the question "is abortion the taking of a life?" Liberals definitely do not want to address that argument in the Supreme Court -- ever. They dodged it in Roe v. Wade, and have been dodging it ever since.
This opinion was well written and is an excellent read. Thanks for posting it, Adam.
Nov '10
Re: Court Strikes Down Contraception Mandate
I would also like to add that I have practiced extensively in the federal court where this was decided, and can attest that a 12 day bench trial is not the normal course of business. It is obvious that Judge Leighton put an enormous amount of time and energy into this case. Those judges have full dockets, and full days. It is commendable that he put as much effort into making his decision as he did.
Of course, next week he may come out with a decision that I totally disagree with, but I'll stick with the praise for how hard he worked -- as a public servant -- on this one.
Edited on February 23, 2012 at 9:45pmApr '11
Re: Court Strikes Down Contraception Mandate
Good news, but that is hardly the point. The HHS mandate was a conscious decision by the administration to provoke a fight with conservatives so that left-wing bloviators like Paul Krugman could prattle on about a "Republican war on contraception." As of now, Obama's strategery appears to be working.
Re: Court Strikes Down Contraception Mandate
Doug Lee: It is obvious that Judge Leighton put an enormous amount of time and energy into this case. Those judges have full dockets, and full days. It is commendable that he put as much effort into making his decision as he did.
Of course, next week he may come out with a decision that I totally disagree with, but I'll stick with the praise for how hard he worked -- as a public servant -- on this one. · 18 minutes ago
Edited 17 minutes ago
Agreed! Judge Leighton - a GWB appointee, lest anyone forget the importance of presidential elections for the federal judiciary!
Dec '10
Re: Court Strikes Down Contraception Mandate
Adam,
It's the opening skirmish of a long war. Of course, I always prefer good news to bad. Let's keep on our toes and expect the bad guys to have plenty of tricks up their sleeve.
I like a good fight. This one is The Good Fight.
Regards,
Jim
Aug '11
Re: Court Strikes Down Contraception Mandate
Great news! I live in Olympia where the pharmacy is located. I guess I know where I'll be going if I need to fill a prescription!