A New York federal judge has issued the first permanent injunction against Obamacare’s contraceptive mandate, and Obama has nobody but himself to blame for it. The mandate is a provision of the Affordable Care Act that requires every employer, except a small sub-set of religious employers, to provide health plans that include contraceptive coverage for free to employees. Various religious bodies, especially Catholic institutions, have been trying to block this mandate every since the ACA passed, and the WSJ reports that New York Judge Brian Cogan has now sided with them.The opinion is important because the Supreme Court has agreed to hear two related cases, and the arguments offered by Cogan here could come into play at the Court (see especially the section on whether the mandate is the least restrictive way of getting contraception to people). But it’s also an entertaining read, largely because Cogan repeatedly makes the point that the way the Obama administration has implemented the ACA undermines the very mandate it wants to defend. For example, Cogan argues that the exemptions the administration has already parceled out to special interest constituencies means that another exemption for religious bodies wouldn’t be interfering with an otherwise uniform application of the mandate:
The Government has not made a similar showing of a compelling interest in uniform enforcement of the Mandate, for the simple reason that enforcement of the Mandate is currently anything but uniform. Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and “religious employers” like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs.
The irony here is great: the Obama administration’s willingness to grant exemptions, extensions, and fixes to all pleading parties is now impeding its ability to justify the provision it really wants to see enforced. It turns out when you play special interest politics, it can come back to bite you in the end.