Yesterday was a busy day at Priests for Life, as we got the surprising news that the Supreme Court had taken action in our case, Priests for Life vs. HHS, and the six other cases consolidated with it in the Zubik vs. Burwell Supreme Court case against the HHS mandate. The Court did not actually rule on the merits of the case, but sent it back to the lower courts for re-evaluation, essentially wiping the slate clean of their prior decisions against us and the other petitioners, and asking the lower courts to consider the new arguments that have arisen.
Those new arguments came as a result of the Supreme Court asking Priests for Life and the 36 other petitioners on the one side, as well as the Obama Administration on the other, whether there was a way that both sides could be satisfied. Could the government, in other words, arrange for our employees to have coverage for abortion-inducing drugs and contraceptives but at the same time not involve us petitioners (including bishops, priests, nuns, lay people, Catholics, and Evangelicals) in the immoral act of doing so?
Essentially, we all said yes. In fact, we had been making the argument all along that there was another way to do this, and that argument was at the heart of our assertion that the HHS has been acting in violation of the law by not following the least restrictive means (least restrictive of our religious liberty) in pursuing its objective of widening contraceptive coverage.
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So now the lower courts have to reconsider the whole question in the light of those additional admissions.
Moreover, it is important to note that we are not just talking about one lower court re-examining the arguments, but four. The seven consolidated cases that comprise Zubik vs. Burwell arose out of the Third Circuit (which heard the Zubik case), the Fifth Circuit, the Tenth Circuit (Little Sisters of the Poor) and the DC Circuit (Priests for Life). So if all four courts have to re-examine the seven cases under their jurisdiction, what happens if they do not all agree? And what happens if not all the petitioners agree with whatever further modifications the Obama Administration may make to the HHS mandate? And this is not to mention the fact that many other cases against the same HHS mandate did not make it to the Supreme Court but are still active in other Circuit courts, which have already issued contradictory judgments.
In short, this is a mess.
But the voters can resolve the mess that the Courts are still trying to sort out. They can do so by electing a pro-life President.
Keep in mind that the HHS mandate that Priests for Life and the other petitioners are fighting in Court did not come from the Congress; it came from the HHS — an administrative agency. While Obamacare does require insurance plans to cover “preventive services,” Congress was speaking in that law about the prevention of disease, not the prevention of pregnancy. The inclusion of the “preventive services” to which we and the other petitioners object (abortion-inducing drugs, contraceptives, sterilization, and related counseling) was an inclusion made at the level of HHS, not Congress. A pro-life president, and a resulting change of leadership at HHS, can undo that inclusion in a single day. This does not require a change in law, nor does it even require a change on the Supreme Court or in any other federal court.
So the outcome of the election can make the dispute between the parties in these multiple cases in multiple courts go away. The courts don’t have such a good track record at deciding public policy these days, and they are not supposed to be the vehicle for doing so anyway. The voters should decide, and they should decide in favor of life.