Ed Whelan, president of the Ethics and Public Policy Center, has written a fine analysis of the recent ruling by federal District Judge Carol Jackson. Judge Jackson struck down the challenge to the HHS mandate brought by O’Brien Industries, a private business.
As Whelan notes, the judge doesn’t contest that the employer is engaged in an exercise of religion when he refuses to provide the objectionable “preventative services” for religious reasons. Rather,
She instead casts her ruling on the ground that the HHS mandate does not impose a substantial burden on non-complying employers. But that conclusion is absurd: As Jackson notes, a monetary fine is one means of substantially burdening the exercise of religion, and the monetary fine for violation of the HHS mandate is substantial indeed—“a $100/per day tax for every employee” and “annual fines of $2000 for every employee.”
Whelan further notes:
Although this case involves a company engaged in a secular, for-profit business, the logic of Jackson’s ruling would apply equally to every employer who has religious objections to the HHS mandate. Under her reasoning, the very narrow exemption that the Obama administration is affording some employers and the “safe harbor” against enforcement that it is temporarily extending to others are entirely gratuitous.
Whelan concludes with a frightening quote from law professor Rob Vischer:
[I]f this court is correct in its analysis, then HHS could rewrite the regulations, remove any exemption for religious employers and add abortion to the list of covered services. The Catholic Church could be forced to pay for its employees’ abortions without creating a substantial burden on religious exercise for purposes of RFRA, and that issue would be so straightforward that it could be handled on a 12(b)(6) motion.