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ACA Agonistes
Contraception Mandate Cases Suggest Wider Clash

Obamacare’s most under-discussed challenge is working its way through the courts: Supreme Court Justice Sonia Sotomayor has issued a temporary injunction blocking the enforcement of the contraceptive mandate against the Little Sisters of the Poor, a group of nuns dedicated to taking care of the elderly poor. The NYT has a good summary of the basic facts:

Under the law, religious employers like churches are exempt from the contraceptive requirement. For-profit corporations fall on the other end of the spectrum and are not exempt. Nonprofit groups affiliated with, but not owned or controlled by religious organizations, like the Little Sisters of the Poor, fall in the middle. Although such groups need not provide coverage themselves, they must sign a certification allowing insurance companies to do so.

The dispute in the new case is whether that certification itself amounts to conduct that violates the groups’ religious faith.

Sotomayor’s injunction means that one of Obama’s own appointees sees at least some merit on the Sisters’ side, and the Obama administration has until Friday to convince her otherwise, at which point she’ll decide to either extend or dissolve the injunction, or have the case brought before the full Supreme Court.

If Sotomayor does decide to refer the case to the full Court, it will be the third case about the mandate the Court will hear in 2014. These will join several other big, contested cases the Court is already likely hear or decide on issues like gay marriage, abortion, and surveillance. Many of these cases point to the growing challenges of governing on the federal level over a pluralistic country highly divided over social, cultural, and moral questions.

One of the trends we’ve seen in Court decisions is to deal with this growing complexity by giving states (and individuals) greater latitude in deciding contested issues. The Court may continue that trend into the New Year. If so, that will make a striking contrast to the centralizing forces at work in the executive branch. The clash between these two forces could be a big story in 2014, and the contraception mandate is a key place to watch it play out.

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  • Jacksonian_Libertarian

    I’d like to know where in the Constitution the Federal Government has been given the power over issues like this? The 9th and 10th Amendments are specific in that unless the power is specifically given to the Federal Government, it wasn’t given. So, where is the power over contraception, or healthcare, or education, or energy, or the environment, enumerated in the Constitution?

    • mgoodfel

      The power of the purse?

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