Senior Judge John L. Kane of the District Court for the District of Colorado did his Solomon-like duty July 27. The Carter appointee issued an injunction against the government’s Affordable Care Act mandate that forces employers to pay for contraceptives, including abortion-causing drugs, and female sterilization for employees.
The mandate he’s forestalled in Newland v. Sebelius comes from Health and Human Services’ preventive services mandate under the Affordable Care Act. It went into effect August 1.
The employer, Denver-based Hercules Industries, makes heating, ventilation, and air-conditioning parts. It is owned by four Catholic siblings, the Newlands, who run their business according to Catholic principles, even if it might affect the bottom line. The company is self-insured and offers a generous health plan but doesn’t fund contraceptives, sterilization and abortion. The Newlands sued HHS for violating their First Amendment rights, which guarantee free expression of religion, and the Religious Freedom Restoration Act (known as RFRA).
The judge weighed two rights: the individuals’ claim that the HHS mandate would violate their religious beliefs and the government’s claim that it had to do so in order to meet the public good. He then looked at the Religious Freedom Restoration Act. It states that the government may not “substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.” RFRA adds that the government may only justify a substantial burden of the free exercise of religion if the challenged law “(1) is in furtherance of government interest; and (2) is the least restrictive means of furthering that compelling government interest.”
Judge Kane’s ruling found that the government’s case for compelling government interest was undermined by the fact that it already has offered exemptions to 190 million health plan participants already.
He also noted the government has a greater interest in upholding the individuals’ free exercise rights than in the government’s claims that it was acting to improve health care for women and children.
Could there be another way to make the government happy? The plaintiffs offered a solution that would not violate their religious freedom and suggested “government provision of free birth control,” even though they would not recommend this as a matter of public policy. They further pointed out that the government already provides free contraception to some women, so their suggestion should not be seen as infeasible by the government.