Nate Jackson / January 15, 2019

The Contraception Mandate and Judicial Resistance

Judges are upholding Obama’s executive actions by striking down Trump’s.

“A federal judge in Pennsylvania has blocked the Trump administration from implementing a rule allowing employers to decline to offer contraceptive coverage on moral or religious grounds,” NPR reports. U.S. District Judge Wendy Beetlestone expanded nationwide a previous ruling by U.S. District Judge Haywood Gilliam Jr. that had applied only to 13 states and DC.

California Attorney General Xavier Becerra applauded Beetlestone’s ruling: “The law [ObamaCare] couldn’t be clearer — employers have no business interfering in women’s healthcare decisions. [This] court ruling stops another attempt by the Trump Administration to trample on women’s access to basic reproductive care.”

Becerra and his cohorts prefer that the government coerce employers to provide for all health care without having any opinion about it. That’s because the leftist idea of “rights” is actually privileges often paid for by someone else.

Meanwhile, the Left does nothing but mock the idea of actual rights. For example, The Washington Post contemptuously notes, “The dispute centers on the issue of ‘religious liberty’ — an animating cause for social conservatives who are part of President Trump’s political base.” Yes, the leftist rag put religious liberty in scare quotes. That liberty is not, however, merely “an animating cause” for a political faction. Religious liberty is guaranteed by the Constitution. Health care paid for by someone else is not.

Another larger point here is that this is another example of something President Donald Trump was elected to do — appoint constitutionalist judges to fight back against the activist rulings of leftist judicial despots. Any number of Trump’s policies, from immigration to contraception to a citizenship question on the 2020 Census, have been blocked by judges who are, to borrow a phrase, animated by the anti-Trump base.

National Review’s David French illustrates the pattern:

Step One: The Obama administration uses its executive power to implement a progressive policy (such as DACA or the contraceptive mandate).

Step Two: The Trump administration uses its executive power to repeal the Obama-administration action and implement a more conservative policy.

Step Three: Progressive plaintiffs file suit in a friendly jurisdiction using dubious legal theories to seek a broad injunction against the Trump-administration action.

Step Four: Progressive judges join the #Resistance, write obviously flawed opinions, and seek to freeze Obama’s policies in legal amber.

What’s more, the contraception mandate is not actually written into the ObamaCare law but rather its resulting regulatory outworking. In other words, it was an executive decision, as is Trump’s move to limit its scope. The same could be said for DACA and other policies Barack Obama implemented by executive fiat but activist judges are blocking Trump from undoing. It’s almost as if Obama’s wishes are these judges’ commands, while Trump has no authority to do anything. That kind of judicial despotism has nothing to do with Rule of Law and everything to do with a craven political agenda.

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