MacCleery’s projection of her radical views on American women leads directly to her sub-par legal analysis. She casually wrote off two lawsuits the Alliance Defense Fund recently filed against President Obama’s mandate. But in recent years, CRR has collected an impressive streak of constitutional flops.
First, it lost to ADF in an Indiana case where CRR contended it was illegal for the government to ensure that local doctors protect women from out-of-state abortionists who botch their procedures and then skip town.
CRR lost big in federal appeals court in Texas trying to argue that the government cannot make sure women are given the option to see their ultrasound before an abortion. CRR got kicked out of an Arizona federal court when it claimed that fully informing women before an abortion and providing minimal safety standards is unconstitutional.
CRR also insists that it is constitutional for governments to force their pro-abortion views to be spoken by private pro-life centers that offer free help to women, but that view has lost in every federal court to consider it.
MacCleery’s advice is similarly suspect when she says ObamaCare’s trampling of religious freedom can pass judicial muster. President Clinton signed the Religious Freedom Restoration Act in 1993, imposing the strictest level of scrutiny known in law to actions like President Obama’s mandate.
MacCleery takes the unprecedented view that RFRA only protects “rituals,” when in fact “free exercise” of religion means what it says: exercising religious beliefs in society. It has never been interpreted so narrowly in federal law…until, of course, President Obama’s mandate declared that no one is really “religious” unless they only worship in their churches.
Actually, President Obama took that view for a test run in another recent case—and a unanimous Supreme Court rejected his radical, secularist view that a religious education is not really religious. It rejected his idea that the government can coerce a private Christian school just because it participates in society.
MacCleery fails to mention that Supreme Court case law does not defer to laws where the government assumes discretion to exempt whomever it wants, except religious believers. Such laws are not “generally applicable” under the Supreme Court’s Smith case.
Many federal appellate courts enforce this rule protecting religious freedom. The federal appeals court in Cincinnati recently ruled in favor of Julea Ward, an ADF client who was expelled from graduate school in Michigan because of her religious beliefs, while the government-run university allowed exemptions for almost anyone else.
MacCleery pretends that the president’s Feb. 10 “compromise” actually exists and undermines the lawsuits against the president’s mandate. In truth, President Obama held a press conference saying one thing at noon that day, and at 5 p.m. published his final rule “without change,” dropping the hammer on religious groups and individuals around the country.
There is no distinction between MacCleery’s argument for mandating that religious people provide contraception, including abortion-inducing drugs, and eventually mandating that they cover abortion, too, as a recent bill in the state of Washington would have required. But the women of America do not value abortion more than they value freedom, and it’s time abortion activists stop pretending they do.
Foster is a graduate of Georgetown University Law Center and serves as litigation counsel with the Alliance Defense Fund (www.telladf.org), which represents two protestant Christian colleges suing the Obama administration over his mandate concerning abortifacients, sterilization, and birth control.