Kim Daniels '94 on Justice Ginsburg's ACA Opinion and HHS Mandate (#UChiLawSCt)


Who would have thought that Justice Ruth Bader Ginsburg’s dissenting opinion in Thursday’s healthcare decision would help opponents of the so-called contraceptive mandate?

Championed by HHS Secretary Kathleen Sebelius, that mandate requires most employers to provide free coverage for contraceptives, abortion-causing drugs, and sterilizations even when doing so violates their deeply-held religious beliefs.  Often called the “HHS mandate,” this regulation was not before the court this time around, and the court’s ruling did not affect it at all.  It remains in force and under challenge; some 56 plaintiffs have filed suit against it in 23 separate cases across the country. 

In her separate opinion – joined by Justice Sotomayor, Justice Breyer, and Justice Kagan – Justice Ginsburg notes that beyond the provisions directly at issue in the healthcare case, other constitutional provisions limit the power of the federal government: “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.” (i) Justice Roberts makes a similar point in the majority opinion. (ii)

To be sure, this is basic constitutional law: the Constitution grants limited powers to the federal government, and even when the government acts within those powers, the Bill of Rights prevents it from taking certain other actions – restricting speech, say, or prohibiting the free exercise of religion. But it’s notable that Justice Ginsburg chose to draw attention to this truism, and it’s language that opponents of the HHS mandate will no doubt highlight.

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