JOSH EARNEST, WHITE HOUSE: Well, as the constitutional lawyer who sits in the Oval Office would tell you is, he would read the entire decision before he passed judgment in terms of his own legal analysis. What we have been able to assess so far ... is that there is a problem that has been exposed, which is that there are now a group of women of an indeterminate size who no longer have access to free contraceptive coverage simply because of some religious views held, not by them necessarily, but by their bosses... We disagree and the constitutional lawyer in the Oval Office disagrees with that conclusion from the Supreme Court. And that's why we--primarily, because he is concerned about the impact it could have on the health of those women....But Hobby Lobby was not a decision under the Constitution; the First Amendment had nothing to do with it. It applied the Religious Freedom Restoration Act (RFRA), a statute passed by Congress almost unanimously and signed into law by then-President Bill Clinton, to invalidate a mandate issued by the Executive branch under a putative authorization from Congress in the Patient Protection and Affordable Care Act (Obamacare). The RFRA requires government, in enacting a law or policy of general application, to select the alternative that imposes the least burden upon religious freedom.
Obamacare itself did not require employers to offer insurance coverage for contraceptive measures. It simply used broader language ("preventive care and screenings"), which the Health and Human Services Agency under President Obama interpreted as including contraception and abortion services. (Yes, Virginia, our enlightened society views the killing of fetuses both inside and outside the womb as "preventive care." And not only that, but all women are entitled to have such "preventive care" for free, just by virtue of their having wombs.)
The Court's majority decision turned upon an analysis that showed there were other, less burdensome alternatives available to the government than requiring all corporate employers to make contraceptive and abortion coverage available to their employees. To accommodate employers such as Hobby Lobby, with their strongly held religious beliefs against terminating life once it has begun, the government could simply have extended the exemption it gave already to religious non-profit organizations. Or it could have subsidized such coverage through payments and credits to insurers.
The availability of these less burdensome alternatives meant that the HHS regulations in this instance did not satisfy the requirements of RFRA. End of story; end of decision. As I said, the Court nowhere invoked the First Amendment or the Constitution.
So the "constitutional lawyer who sits in the White House" apparently does not get it. As Mr. Earnest put it after saying the words quoted above, and as Reuters subsequently reported, the President intends to "act on his own" to mitigate the perceived effects of the ruling. But that is what Obama already did -- he acted on his own in deciding to require all employers except churches to furnish free coverage for contraception and abortion services. He simply did not choose the least burdensome way of doing so.
Do you believe he will figure that out? Given the reaction to Hobby Lobby from the left generally yesterday, it is highly doubtful. They acted as though the Supreme Court (and not Congress, through its RFRA) had personally deprived them of their ability to kill life in their bodies. It does not make for very elevating reading, but you can follow this link to the Twitter feed of SCOTUSblog, a blog about the Supreme Court and its decisions that I feature under my "Juricannon" category at the right.
Scroll down to where the tweets began in anticipation of the Court's two decisions on June 30, and notice how quickly people started attacking SCOTUSblog for reporting what Hobby Lobby decided, as though it were the official blog of the Court, written by the Justices! The blog's authors replied with mild sarcasm ("@SCOTUSblog: When will you start reading the Constitution?" "When you start reading our description." "@SCOTUSblog: today you have f__ed up real hard. Go read the f__ing First Amendment again, OK?" "Lost our copy, apologies.") -- and this only inflamed the humorless Twitterleft even further. The abuse came pouring in -- and as you will read, most of the Tweets thought they were attacking the Court personally.
This is not a good omen for the general level of civic education in America. From the President, who is setting the worst examples, on down to the least-informed of the public, people are clamoring for more free services from the government, and expressing anger and frustration at those who would block them from, or deprive them of, such services. We are well on the way to the entitlement state, and to finding the answer to that key question posed for us more than a century ago by a President who knew his Constitution.
[UPDATE 07/05/2014: Be sure to read this post at the Power Line blog, which quotes a letter to the editor of the San Francisco Chronicle not only underscoring the point made in this post, but also reminding everyone that Obamacare would never have squeaked past Congress had it specifically provided for abortion coverage, or had it contained an exemption from RFRA.]