Contraceptive Coverage: A 'Compelling Government Interest'?

The Hobby Lobby case is being hai​led by freedom advocates as a great victory.  On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom.

One of these land mines is how the justices treated the question of whether mandated abortifacient insurance promotes a “compelling government interest.”

In its principal opinion, the Court assumed for purposes of argument that the U.S. Department of Health and Human Services (HHS) contraceptive mandate serves a compelling government interest.  ​However, five members of the Court – ​a majority – went farther:​ Justice Kennedy stated in concurring opinion that the decision’s “premise” was that the federal government had a “compelling interest in the health of female employees.”  The four dissenters affirmatively claimed that the mandate furthered “compelling interests in public health and women’s well being.”

​The mandate in question was issued ​under the Affordable Care Act (ObamaCare).  In 2011, a federal district judge found that another Obamacare mandate also ​served a “compelling interest” (Mead v. Holder).

It is a very serious matter when the Supreme Court classifies a law or other government action as serving a “compelling interest.”  ​In the Court's jurisprudence, most​ laws promote only “legitimate” interests, and a few promote legitimate interests that are “important” as well.  On rare occasions, a legitimate interest is held also to be “compelling.”  If a​ law is deemed “necessary” to advance the compelling interest, the law may actually overrule portions of the Bill of Rights.  It also may overrule basic liberties listed elsewhere in the Constitution or in the Religious Freedom Restoration Act.

Although the ObamaCare mandate in Hobby Lobby ultimately ​did not override the Religious Freedom Restoration Act, the ObamaCare​ mandate in Mead v. Holder did.

In our federal system, the states enjoy broad powers to regulate to promote health, safety, morals, and general welfare.  In other words, states can employ the law for many legitimate purposes.  The Court has found that some of these legitimate purposes are compelling.  For example, a state vaccination law designed to prevent epidemics may overrule ​one's ​right to refuse vaccination.  Similarly, the Court holds​ that a state’s interest in stamping out racial discrimination is not only legitimate, but compelling.

Still, the number of compelling interests is fairly small.  Even state health laws usually are not compelling enough to overrule fundamental rights.

Unlike the states, the federal government is limited to the enumerated powers granted in the Constitution.  The Supreme Court has ​ruled​ that some of these​ enumerated powers also serve compelling interests, such as national defense and Congress’s 14th-Amendment authority to remedy discrimination by state governments.  But federal peacetime economic regulations, like state laws, are almost never “compelling.”

That brings us to ObamaCare.  The Affordable Care Act has all sorts of social and health care implications, but (aside from its taxes and spending provisions) it is justified constitutionally as a set of commercial and economic regulations.  For example, when arguing that the Supreme Court should uphold ObamaCare, the president characterized it as “a[n] economic issue ... that I think most people would clearly consider commerce.”  In her Hobby Lobby dissent, Justice Ginsburg likewise cited economic factors to justify the contraceptive mandate.

Thus, despite ​ObamaCare's ​health implications, its constitutional ​purpose is economics or, ​more precisely, commerce.  ObamaCare’s regulations on insurance companies and employers, such as the contraceptive mandate, specifically are said to rest on the Constitution’s Commerce Clause.  This is because the Constitution grants the federal government no enumerated​ power over health care.  The great Chief Justice John Marshall made this very point in his famous opinion in Gibbons v. Odgen, when he wrote that “health laws of every description” were reserved exclusively to the states.

But if, constitutionally, ObamaCare is but a ​collection of economic regulations – and if peacetime economic interests are virtually never “compelling” – then why is ObamaCare different?  Is it just that the ObamaCare is popular among the class of people who serve as federal judges?

The answer is that in this sense, ObamaCare is not different.  It is constitutionally similar to many hundreds of other economic regulations enacted by Congress and the states.  It is just more comprehensive and much more intrusive.

Now consider the risk to freedom from allowing such a law to be lifted to “compelling” status.  That risk extends far beyond the threat to religious liberty.  If, for example, providing “free” contraceptives is a compelling interest, then Congress might pass a law forcing companies to produce them.  Or if forcing people to buy insurance serves a compelling interest, then federal officials might well demand laws to jail people who try to dissuade others from signing up.

Remember the Supreme Court’s formula: a law necessary to promote a compelling interest can override the Bill of Rights.  ObamaCare is barely constitutional – if it is constitutional at all.  We must not allow the courts to sanctify it.

Rob Natelson is a retired constitutional law professor and senior fellow in constitutional jurisprudence at the Independence Institute in Denver.  He has been cited in U.S. Supreme Court opinions 16 times (in four separate cases) over the past year.

The Hobby Lobby case is being hai​led by freedom advocates as a great victory.  On balance it certainly it is a victory for those who value personal freedom. But it also contains land mines that may one day prove destructive to freedom.

One of these land mines is how the justices treated the question of whether mandated abortifacient insurance promotes a “compelling government interest.”

In its principal opinion, the Court assumed for purposes of argument that the U.S. Department of Health and Human Services (HHS) contraceptive mandate serves a compelling government interest.  ​However, five members of the Court – ​a majority – went farther:​ Justice Kennedy stated in concurring opinion that the decision’s “premise” was that the federal government had a “compelling interest in the health of female employees.”  The four dissenters affirmatively claimed that the mandate furthered “compelling interests in public health and women’s well being.”

​The mandate in question was issued ​under the Affordable Care Act (ObamaCare).  In 2011, a federal district judge found that another Obamacare mandate also ​served a “compelling interest” (Mead v. Holder).

It is a very serious matter when the Supreme Court classifies a law or other government action as serving a “compelling interest.”  ​In the Court's jurisprudence, most​ laws promote only “legitimate” interests, and a few promote legitimate interests that are “important” as well.  On rare occasions, a legitimate interest is held also to be “compelling.”  If a​ law is deemed “necessary” to advance the compelling interest, the law may actually overrule portions of the Bill of Rights.  It also may overrule basic liberties listed elsewhere in the Constitution or in the Religious Freedom Restoration Act.

Although the ObamaCare mandate in Hobby Lobby ultimately ​did not override the Religious Freedom Restoration Act, the ObamaCare​ mandate in Mead v. Holder did.

In our federal system, the states enjoy broad powers to regulate to promote health, safety, morals, and general welfare.  In other words, states can employ the law for many legitimate purposes.  The Court has found that some of these legitimate purposes are compelling.  For example, a state vaccination law designed to prevent epidemics may overrule ​one's ​right to refuse vaccination.  Similarly, the Court holds​ that a state’s interest in stamping out racial discrimination is not only legitimate, but compelling.

Still, the number of compelling interests is fairly small.  Even state health laws usually are not compelling enough to overrule fundamental rights.

Unlike the states, the federal government is limited to the enumerated powers granted in the Constitution.  The Supreme Court has ​ruled​ that some of these​ enumerated powers also serve compelling interests, such as national defense and Congress’s 14th-Amendment authority to remedy discrimination by state governments.  But federal peacetime economic regulations, like state laws, are almost never “compelling.”

That brings us to ObamaCare.  The Affordable Care Act has all sorts of social and health care implications, but (aside from its taxes and spending provisions) it is justified constitutionally as a set of commercial and economic regulations.  For example, when arguing that the Supreme Court should uphold ObamaCare, the president characterized it as “a[n] economic issue ... that I think most people would clearly consider commerce.”  In her Hobby Lobby dissent, Justice Ginsburg likewise cited economic factors to justify the contraceptive mandate.

Thus, despite ​ObamaCare's ​health implications, its constitutional ​purpose is economics or, ​more precisely, commerce.  ObamaCare’s regulations on insurance companies and employers, such as the contraceptive mandate, specifically are said to rest on the Constitution’s Commerce Clause.  This is because the Constitution grants the federal government no enumerated​ power over health care.  The great Chief Justice John Marshall made this very point in his famous opinion in Gibbons v. Odgen, when he wrote that “health laws of every description” were reserved exclusively to the states.

But if, constitutionally, ObamaCare is but a ​collection of economic regulations – and if peacetime economic interests are virtually never “compelling” – then why is ObamaCare different?  Is it just that the ObamaCare is popular among the class of people who serve as federal judges?

The answer is that in this sense, ObamaCare is not different.  It is constitutionally similar to many hundreds of other economic regulations enacted by Congress and the states.  It is just more comprehensive and much more intrusive.

Now consider the risk to freedom from allowing such a law to be lifted to “compelling” status.  That risk extends far beyond the threat to religious liberty.  If, for example, providing “free” contraceptives is a compelling interest, then Congress might pass a law forcing companies to produce them.  Or if forcing people to buy insurance serves a compelling interest, then federal officials might well demand laws to jail people who try to dissuade others from signing up.

Remember the Supreme Court’s formula: a law necessary to promote a compelling interest can override the Bill of Rights.  ObamaCare is barely constitutional – if it is constitutional at all.  We must not allow the courts to sanctify it.

Rob Natelson is a retired constitutional law professor and senior fellow in constitutional jurisprudence at the Independence Institute in Denver.  He has been cited in U.S. Supreme Court opinions 16 times (in four separate cases) over the past year.

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