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Contentions

Solid Case Against Birth Control Mandate?

More than 40 religious institutions, included Catholic universities and charities, filed simultaneous lawsuits against the Obama administration’s birth control mandate yesterday, As The Hill reports, the biggest threat to the mandate in court is a 1993 religious freedom law, which was originally introduced by the late Sen. Ted Kennedy and then-Rep. Chuck Schumer, of all people:

RFRA sailed through Congress with broad bipartisan support in response to an unpopular decision by the Supreme Court that was seen as curbing Native Americans’ religious freedom to use peyote, a traditional hallucinogen.

Now it will force the government to prove that federal regulators did not have another way to expand women’s access to birth control that would be less burdensome on religion — an argument experts say conservatives can win.

The law puts the onus on the federal government to show that it had a compelling interest in requiring Catholic employers to provide birth control coverage, and that it couldn’t have achieved these aims another way. The Hill reports that legal experts think this case is solid:

“I think the odds are pretty good for the plaintiffs here,” Marc DeGirolami, an assistant law professor at St. John’s University, told The Hill.

Because of the law, courts now have to apply certain standards to federal actions that might inadvertently infringe on religious liberty. In one sense, laws under scrutiny must aim to achieve a “compelling” government interest. In another sense, they must be designed in a way that burdens religion as little as possible.

It’s much smarter for Catholic groups to fight this in the courts than through Congress. The legal challenge will refocus the issue on religious freedom, and make it much more difficult for Democrats to argue that opposition to the birth control mandate is all about waging a “war on women.” And the administration will be forced to argue against a religious freedom law backed by the late Ted Kennedy and Democratic attack dog Chuck Schumer, who helped push the war on women narrative.