Since a court has now ruled that illegal aliens have the right to come here and demand access to an abortion, what a Pennsylvania judge did last week may not be surprising. But it’s no less insane.
Judge Wendy Beetlestone, an Obama appointee to the U.S. District for the Eastern District of Pennsylvania, ruled that the Trump administration must continue enforcing the Obama-era contraception mandate, forcing employers to directly or indirectly provide contraception as part of their mandated insurance benefits for their employees. As part of a growing trend, Beetlestone applied the injunction nationwide against yet another good policy from the Trump administration, this time at the behest of Pennsylvania’s attorney general. Obama’s legacy lives on through the courts.
So, how can a state government obtain stranding to sue for the imposition of a contraception mandate? Here is the kicker from Judge Beetlestone:
The Commonwealth’s concern is absent available cost-effective contraception, women will either forgo contraception entirely or choose cheaper but less effective methods — individual choices which will result in an increase in unintended pregnancies. That in turn will inflict economic harm on the Commonwealth because unintended pregnancies are more likely to impose additional costs on Pennsylvania’s state-funded health programs.
There are no adjectives in the English language to describe the level of insanity this judge is exhibiting with a straight face. Courts are now saying that states have no right to regulate abortions or election integrity laws without interference from the feds, yet states can get standing to sue the feds to mandate free contraception upon employers. Courts rule that citizens can’t get standing when states refuse to enforce immigration laws and harm our communities with poverty and violence, yet somehow the lack of free birth control is going to cause “serious and irreparable harm,” in the words of this radical judge.
Unless Judge Beetlestone lives in a cocoon, she would realize that a three-month pack of birth control costs between $20 and 30. That is less than the cost of three months’ worth of my Sudafed supply.
In October, President Trump stopped enforcing an Obama-era arrangement to coerce employers into covering contraception and abortifacients in violation of their religious beliefs. But as I observed in the Masterpiece Cake Shop case, this is about more than religious liberty. It’s an issue of property rights. No employer should be forced to cover a particular drug, especially one that is so readily available. Acknowledging that there is no evidence of harm or people dying on the streets with pregnancies they can’t handle due to the $20 “burden” of birth control, the judge cloddishly defended her injunction by asserting that “there is no need to wait for the axe to fall before an injunction is appropriate.”
What about a mandate forcing employers to cover other items sold in that aisle of the drug stores? Free pregnancy tests, condoms, etc.? Where does this end?
There are several other important observations from this case:
1. Once again, we see how even the rare victory for conservatives at the Supreme Court turns out to be fleeting and hollow. Much as with Heller and the Second Amendment, the Hobby Lobby case affirming the religious liberty right not to be forced into covering employees’ abortifacients has been uprooted by the lower courts.
After losing the 2014 case to directly force religious employers to cover abortifacients in their health insurance compensation plans, the Obama administration concocted a new scheme. Any objecting organization must send a cumbersome form to the Department of Health and Human Services (HHS) stating the grounds for the religious objections. If they are approved for the exemption, HHS then requires the insurance provider of that organization or a third party to provide the contraception coverage separately.
After almost every lower court upheld Obama’s new scheme, the Supreme Court refused to rule on it, allowing the muddled status to continue in the lower courts. In 2015, in the Stormans case, the Ninth Circuit ruled that a Washington state pharmacy must provide essentially every type of contraception under the sun, even though 30 other vendors sold all the products within five miles. SCOTUS refused to grant an appeal to the owners of the pharmacy. Now, a single Pennsylvania judge is able to force the entire scheme on a subsequent president.
2. Many conservatives are gloating that Trump has successfully confirmed more appellate nominees (12) this early on in his presidency than any president in over 100 years. While Trump has definitely fulfilled his promise and is doing what he can on the courts, this Pennsylvania case is another example of why it won’t help without wholesale judicial reform. Most of the nominees (9 of 12) were replacing Republican appointees, several of whom were very big losses for conservatives, such as Janice Rogers Brown. Moreover, they are not swinging circuits that weren’t already solid (the 5th and the 8th). This is one more example of how the Left can go to a liberal district judge in the Second, Third, Fourth, Ninth, or D.C. Circuits, which will remain liberal throughout Trump’s tenure, obtain a nationwide injunction on the most commonsense policies, have them upheld by the appeals courts overseeing those districts, and, in most cases, glide past the Supreme Court because of its reluctance to interfere. Unless the practice of nationwide injunctions is countermanded by Congress, Trump will be a lame duck.
3. The judicial power is exercised when there is a legitimate plaintiff with a concrete and particularized individual right at stake that constitutes a case or controversy with an actual redressable grievance. For example, if a state or federal government is confiscating property or imprisoning someone without due process, the person has a right to petition a court for relief to cancel the punishment. In this case, we have a state government petitioning a federal court to demand that a president continue a compromise scheme created by his predecessor to demand that employers, not just in Pennsylvania but throughout the country, provide “free” birth control to all their workers. This, my friends, is what has elevated judicial review over individualized cases to judicial supremacy over all abstract political disagreements over policy.
The legal system and corrupt courts have elevated the “right” to an abortion or contraception to such a level that now America is becoming a magnet for abortion chain migration. Remember when the U.S. Court of Appeals for D.C. created a right for illegals to come here and demand an abortion? The ACLU has two more customers to sue the government for such a right. And guess what? They are going back to Judge Tanya Chutkan, the same D.C. federal judge who issued the first order!
2017 will be remembered as the year when even the lower courts have been elevated to the status as supreme law over our Constitution.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.