Here’s a story published yesterday in the Times on the HHS Mandate law suits. The story has several problems, among which are:
(1) It gives the impression that courts are, at this point, either dismissing these cases because they believe that “contraception is a vital health need and a compelling interest” or finding for the plaintiffs because “they [the plaintiffs] have been told that their beliefs appear to outweigh any state interest and that they may hold off complying with the law until their cases have been judged.” The reality is that the large majority of these suits have been dismissed without prejudice on standing or ripeness grounds, as we have noted again and again here at CLR Forum. Standing does not appear at all in the story.
(2) Its focus on the Free Exercise Clause is odd. It mentions the Religious Freedom Restoration Act, but it focuses on the Free Exercise Clause and it mistakenly calls the O Centro case a free exercise case. It was a RFRA case. Here is some important language in that case:
The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.”
The discussion of the Smith decision in the news story also gives the misimpression that Smith is an iron clad rule with no exceptions, but that is not true, as I have noted before.
(3) The story references the possibility that “[a] compromise for religious institutions may be worked out” and then proceeds to talk about the previously announced putative plan to shift the cost of contraception to insurers. Standing alone — i.e., without an expansion of the category of religious employers and without dealing with the issue of self-insured plaintiffs — that compromise will work very little out for religious institutions. But I guess we’ll see by roughly the end of the first quarter.
That said, the reporter is to be commended for getting a variety of perspectives on the issue.