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Sotomayor Gives Hope to ObamaCare Foes

For most of the last three years since ObamaCare was passed by Congress, liberals have dismissed efforts to overturn the portion of the law mandating that employers pay for contraception and abortion drugs as the province solely of right-wing extremists. They have mocked the notion that the religious rights of churches, religious groups, and believers who own private businesses have been violated by the government’s order.  Even as lawsuits challenging the legality of the Department of Health and Human Services’ mandate have gradually made their way through the federal system, the reaction from the White House and prominent liberal outlets such as the New York Times has been to deny the legitimacy of the debate. Even worse, they have maliciously tried to turn the discussion from one of religious liberty to a false charge that it is the plaintiffs in these suits that are trying to impose religious views on their employees.

But with the Supreme Court already agreeing to consider some challenges to the law, the effort to ignore the appeal to religious liberty received another blow this week when Justice Sonia Sotomayor agreed to issue an injunction against enforcement of the mandate pending resolution of litigation. While in no way a guarantee of future success in court, the liberal Sotomayor’s ruling preventing the government from imposing fines against the Denver-based Little Sisters of the Poor for refusing to obey the ObamaCare dictate is a sign that the plaintiffs have not only a strong argument but a reasonable chance to prevail. This should encourage those who entertain the hope that the administration’s abuse of power may yet be reversed. But it also demonstrates the seriousness of an argument that liberals would prefer to ignore.

The injunction in this case is significant because it stops the government from stifling challenges to ObamaCare before the legal process is completed. With organizations and companies that defy the mandate subject to crippling fines that could put them out of business, plaintiffs can be effectively destroyed before a definitive ruling has been reached. While the lower courts in 18 out of 20 such cases have rightly granted such injunctions in the federal system, Sotomayor’s rescue of this group of charitable nuns who had been previously denied judicial relief is a signal victory. That a liberal who is an Obama appointee would act in this way demonstrates that the challenge to the mandate is not a case of conservative groups tilting at windmills.

Liberals have used complaints about the mandate to promote the myth that conservatives were waging a “war against women” as if free contraception were a basic constitutional right. It also ignores the government’s effort to restrict the rights of those being asked to pay.

As some federal courts have already ruled in related cases, the imposition of the president’s vision of a health-care system where all employers — including religious believers whose faith precludes such actions — must pay for contraception or abortion drugs places a severe burden on the free exercise of the religious freedom of those involved. In the absence of the demonstration of a compelling government interest that would force nuns or other groups or individuals opposed to such practices to pay for such services, the law is a clear violation of the Religious Freedom Restoration Act as well as a blow to First Amendment rights. In response to these appeals, the Justice Department has dismissed the idea that anyone’s rights are violated and instead argued that those who work for the nuns or any other religious group or company owned by believers are entitled not only to access to such services but that their employers must pay for it. If this argument were to prevail, the result could be a new and dangerously restrictive definition of religious freedom that would confine the right to practice one’s faith to houses of worship and in the home but not in the public square.

Anyone who attempts to predict how the Supreme Court will rule on any aspect of ObamaCare is unwise, as Chief Justice John Roberts’s illogical opinion, upholding the law as a tax, proved in 2012. But the injunction from Sotomayor, who has already upheld the constitutionality of the law, has to scare liberals who have assumed there was no merit whatsoever to the religious freedom challenge.