Conservatives were disappointed in 2012 when the Supreme Court failed to strike down the Affordable Care Act as unconstitutional, and many of the advocates for the law maintained that Obamacare had cleared all legal obstacles to make it a permanent fixture in American life. But such is not the case, as Supreme Court Justice Sonya Sotomayor recently ordered a stay on the ACA’s requirement that insurance providers make no-cost contraception available to all parties they cover, including those who view contraception as a violation of their religious principles.
This is a promising development.
It may not mean Justice Sotomayor will eventually vote to overturn the contraception provision, nor does it indicate which way the rest of the court will go. But it is, at least, recognition of the fact that this requirement deserves greater legal scrutiny than it has received up to this point. The groups being forced to comply with this mandate insist that requiring them to provide contraception violates their religious freedom. Given that religious freedom is one of the bedrock principles upon which this nation was founded, it’s imperative that no law that could significantly undermine that right be allowed to stand.
The Obama administration, when initially confronted with objections about the contraception mandate, added an extra layer of distance it hoped would diffuse the controversy. It burdened insurance companies, not the employers themselves, with the responsibility to offer contraception coverage. But this was inadequate to quell the concerns of religious employers, who remain obligated to do business with companies engaged in a practice they find immoral, and to allow their employees access to such coverage. Government regulations should never require Americans to go against their consciences where their faith is concerned.
Some have argued that the discomfort with the contraception mandate is a small price to pay in order to serve the diverse needs of a pluralistic society, and that its removal from the law would make the Affordable Care Act unworkable in many situations. But neither of those concerns trump the imperative of maintaining religious liberty. The First Amendment right to freedom of religious expression was, in many ways, designed to make life difficult for the majority. It ensures that the faith-based principles of a minority of citizens can’t be annulled by 51 percent of the vote.
We welcome Justice Sotomayor’s stay, and we look forward to the opponents of the contraception mandate getting their day in court. In the interests of preserving religious liberty, we hope this mandate will be struck down.