Written by Don Byrd
Stanford law professor and former 10th Circuit Appeals judge Michael McConnell yesterday weighed in on Tuesday’s oral arguments in the Hobby Lobby contraception mandate case. He is especially skeptical of the government’s argument that there is a compelling interest in protecting the rights of employees under the Affordable Care Act to have insurance that covers all contraceptive forms identified in regulations articulated by the Department of Health and Human Services.
Among his arguments against the compelling interest piece is the suggestion that agency regulations flowing from a law are less indicative of the government’s interests than are explicit legislative provisions articulated by Congress.
Congress did not impose the contraceptive mandate, but left it to HHS to decide what “preventive services” must be covered. If Congress really viewed contraceptive coverage as a compelling interest it would not have left it to the vagaries of the administrative process, which are subject to political change from administration to administration.
The interest is further undermined by HHS’s statutory authority to grant religious exemptions to whomever it chooses . . . Genuinely compelling interests—that is, those that cannot tolerate religious exemptions—do not come with open-ended regulatory authority to create exceptions.
You can read highlights from the oral arguments in previous posts here (on the third party burden issue) and here (on the issue of whether corporations can exercise religion).
