Suing for Freedom

New constitutional concerns arise while lawsuits against Obamacare grind on


The legal reasoning behind rulings against several plaintiffs who have sued to overturn Obamacare’s contraception mandate has raised questions about the separation of powers and the ability of the judiciary to address effectively the constitutionality of actions by the executive branch, observers say.

There are currently 38 pending suits against the United States Department of Heath and Human Services (HHS) mandate, with “over 110 plaintiffs,” according to the Becket Fund, a nonprofit organization dedicated to religious freedom that represents many of the plaintiffs.

The central issue in these lawsuits is the constitutional protection of religious liberty, said a spokesman for the Becket Fund.

“If the mandate were to stand, there really is no clear line as to where religious liberty would be honored,” said Eric Baxter, senior counsel at the Becket Fund.

However, the initial decisions coming down in a couple of cases have raised further constitutional concerns.

The “government has moved to dismiss in all the cases,” Baxter said. The courts have agreed with the government in two of those cases, dismissing suits brought by Wheaton College and Belmont Abbey College.

The judge ruling against Wheaton argued that, because the government was taking “concrete steps … to address Wheaton’s concerns,” Wheaton did not have a “concrete and imminent injury” and therefore “its claims are not fit for judicial review.”

The judges reasoned that “the courts shouldn’t intervene” when things “are still in flux,” said Daniel DiSalvo, a senior fellow at the Manhattan Institute.

These “concrete steps” include a pledge not to enforce the mandate for a year and an “Advanced Notice of Proposed Rulemaking” that announced the government’s intention to change the regulations.

What the judges ignored, according to legal experts, is that the government has issued a final rule, and these “concrete steps” have no binding force over the government’s actions.

“There’s a law on the books right now that binds people to violate” their religious convictions, said John Eastman, a professor at the Chapman University School of Law and founding director of the Center for Constitutional Jurisprudence at the Claremont Institute.

The administration has issued a final regulation, and “it’s binding. … People have to start acting on it,” Eastman said.

The advanced notice of proposed rulemaking, in contrast, has no binding power over the government.

As a “matter of law, that document has no significance,” said Baxter.

The courts relied on an “ambiguous, non-binding statement,” said Ilya Shapiro, a senior fellow at the Cato Institute.

Lawyers from the Cato Institute, the American Civil Rights Union, and the Center for Constitutional Jurisprudence jointly filed a friend of the court brief in support of Wheaton and Belmont Abbey earlier this month.

“Wheaton and Belmont were unjustly deprived of their right to be heard because of an unenforceable act of a lower executive officer,” they argued in the brief.

The brief calls the decisions “frightening examples of an abdication of judicial authority” that blurs the separation of powers set forth in the Constitution.

“The executive branch cannot perpetually preclude judicial review of its own unconstitutional action by simply announcing plans to perhaps consider, at some point in time, some unspecified change in the regulation,” the brief states.

“People simply can’t plan their lives if they are subject to this kind of ad hoc discretion,” Shapiro said. He noted that the reasoning employed in the decision could have implications far beyond the healthcare law.

Both Wheaton and Belmont Abbey have appealed to the D.C. Circuit Court of Appeals. That court’s decision will affect the rest of the lawsuits, as it “sets the precedent nationally for how plaintiffs can proceed in court to challenge the government,” Shapiro said.

If the Court of Appeals overturns the lower courts’ decisions, then the way will be cleared for the cases to be decided on the merits.

“I think ultimately this is a fairly easy case” based on the merits, said Shapiro.

“The contraception mandate is a pretty clear example of abuse of federal power and executive power,” he said.

It is clear “that there is a violation of religious freedom,” said Baxter. “We anticipate prevailing, of course. That’s why we brought the lawsuits.”

The president and his administration “have a view of government that government ought to push agendas regardless of people’s religious objections,” Eastman said.

“Basically it comes down to whether we will continue the American tradition of respecting religious conscience,” said Baxter.

“Basic freedoms of the First Amendment are at stake,” he said.

Andrew Evans   Email Andrew | Full Bio | RSS
Andrew Evans is an assistant editor at National Affairs and a former reporter for the Washington Free Beacon, where he covered government accountability and healthcare issues.