Federal District Judge Richard Leon has ruled in favor of the March for Life in its suit against the HHS Mandate. Law Professor Josh Blackman explains the basis for his opinion:
In March for Life v. Burwell, Judge Leon (D.D.C.) found that HHS could not enforce the contraceptive mandate against March for Life, a staunchly pro-life group that is not religious. Beyond the conventional RFRA analysis, the court found that HHS lacks a rational basis to exempt religious organizations that oppose abortion, but not similarly situated secular organizations with the same beliefs. This analysis echoes a point we made in the Cato Amicus in support of the Little Sisters of the Poor–that HHS lacks the interpretive authority to pick and choose which religious organizations can receive exemptions from the mandate.
Judge Leon’s analysis, though grounded in equal protection doctrine, reaches a very similar conclusion. Here is the key analysis:
What emerges is a curious rationale indeed. HHS has chosen to protect a class of individuals [Houses of worship only] that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has consequently moored this accommodation not in the language of conscientious objection, but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate. The characteristic that warrants protection–and employment relationship based in part on a shared objection to abortifacients–is altogether separate from theism. Stated differently, what HHS claims to be protecting is religious belief, when it actually is protecting a moral philosophy about the sanctity of human life. Where HHS has erred, however, is in assuming that this trait is unique to such organizations [Houses of worship]. It is not.
The court goes on to explain that March for Life, and its employees, share a pro-life philosophy. Indeed, their employees work there to advocate their views.
On the spectrum of “likelihood” that undergirds HHS’s policy decisions, March for Life’s employees are, to put it mildly, “unlikely” to use contraceptives. In this respect, March for Life and exempted religious organizations are not just “similarly situated,” they are identically situated.
The court finds this classification cannot be supported by a rational basis:
HHS has chosen, however, to accommodate this moral philosophy only when it is overtly tied to religious values. HHS provides no principled basis, other than the semantics of religious tolerance, for its distinction. If the purpose of the religious employer exemption is, as HHS states, to respect the anti-abortifacient tenets of an employer relationship, then it makes no rational sense–indeed no sense whatsoever–to deny March for Life that same respect.