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The HHS Mandate: The Legal Argument that Should Prevail at the Supreme Court


In the new term just begun at the Supreme Court, the justices are very likely to revisit the status of the infamous “HHS mandate” that was at the center of the Hobby Lobby case. Even the Obama administration has urged the Supreme Court to take one of the cases decided by the federal appeals courts, though the Justice Department seems strangely apprehensive about squaring off against the Little Sisters of the Poor. But while HHS has been winning most of the cases below, the litigation has prompted the sharpening of the argument that should win the day for religious freedom.

Readers will recall that the mandate, decreed by the Department of Health and Human Services as a regulation implementing the Affordable Care Act, requires the vast majority of employers of more than fifty persons to provide insurance coverage for contraceptive drugs and devices—including known abortifacients—under the rubric of “preventive health care,” at no cost to the employee. Certain narrowly defined “religious employers”—essentially houses of worship—are fully exempted from the mandate.

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