Contraceptive Ruling Shows Breathtaking Judicial Arrogance

In a mostly unnoticed manner, lower federal courts are actively blocking President Trump’s agenda. National injunctions, a once-rare legal practice, are now almost de rigeur among lower court judges; a way to gain national attention by using regional cases to bind the hands of the executive.

It is a national injunction that is currently blocking President Trump’s efforts to overturn the requirement in Obamacare which mandates employers to cover FDA-approved contraception at no cost to the woman.

The Obama administration went to absurd lengths to enforce this mandate, taking the Little Sisters of the Poor, an order of Catholic nuns, to court and threatening them with approximately $75 million in fines each year for their failure to comply with the contraceptive mandate, which they opposed on religious grounds. (The Catholic Church does not support birth control.)

In October of 2017, President Trump issued new regulations allowing business owners with “sincerely held” religious or moral objections to opt out of the mandate. “The United States has a long history of providing conscience protections in the regulation of health care for entities and individuals with objections based on religious beliefs or moral convictions,” the administration wrote in the new rules.

But a judge in Pennsylvania was having none of it. After Trump’s new regulations were challenged in court, 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 contraceptive mandate, regardless of religious or conscience grounds.

In her ruling, Judge Beetlestone determined that lack of access to free birth control would cause “serious and irreparable harm” to the women of Pennsylvania, who would have to “forgo contraception entirely or choose cheaper but less effective methods.” The result of this, according to Beetlestone, would be an increase in unintended pregnancies which would then “inflict economic harm on the Commonwealth” in the form of additional costs for state-funded health programs.

Beetlestone then applied the injunction nationally, subjecting the rest of the country to what can only be described as her torturous application of the irreparable harm standard.

What makes the ruling even more stunning, however, is the fact that in it, Beetlestone conceded that the state “has not identified any individual who has lost coverage already.” Regardless, she determined “there is no need to wait for the axe to fall” before applying her injunction.

In other words, the whole basis of the case—whether or not the women of Pennsylvania would suffer irreparable harm if a handful of business owners stop providing free access to birth control for religious reasons—remained unproven. Quite literally, the “irreparable harm” that was the stated reason for binding the entire country under this district court’s ruling, hadn’t even happened.

Yet, in a breathtaking degree of judicial arrogance, Beetlestone still took the extraordinary step of halting, nationally, the implementation of executive authority on the grounds that future women will suffer terribly if they have to go buy a pack of $20 birth control.

She was joined six days later by Judge Haywood Gilliam from the Northern District of California, who cited the “dire public health and fiscal consequences” of allowing religious and conscience-based exemptions.

The efforts of Judges Beetlestone and Gilliam are blatant examples of the lower courts actively seeking to thwart key components of President Trump’s agenda—and doing so successfully.

As a result of these national injunctions, the Trump Administration is blocked from pursuing its regulatory agenda—over which it has clear authority. Unless and until the administration appeals the decision all the way to the Supreme Court, two regional judges from Pennsylvania and California will have blocked the president from doing what he was elected to do.

This bleed of power from the executive into the judiciary is a dangerous trend. On a practical level, it is allowing district courts—the lowest level of the U.S. legal system—to determine what laws can be enforced. And this is a problem. Judges are intended to interpret the law, not render subjective determinations on what it “should” be.

But from a broader, historical perspective, the balance of powers in America is shifting. With national injunctions on the rise, it is no longer an expectation that an elected president will be able to govern as the Constitution intended. Rather, his constitutional and electoral mandate will be subject to the whims of the courts; to the personalities of lower court judges in far-flung regions of the country.

This is exactly what is happening as lower courts are blocking the president’s efforts on everything from the contraceptive mandate to environmental regulations. It’s an insidious shift in the balance of powers that was warned against by the Framers. Their counsel in these matters remains relevant.

As Thomas Jefferson wrote to his wife in 1804, “Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive . . . the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves . . . but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” Jefferson was right. Judges Beetlestone and Gilliam are indeed despots in black robes.

Photo credit: iStock/Getty Images

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About Rachel Bovard

Rachel Bovard is senior director of policy at the Conservative Partnership Institute and Senior Advisor to the Internet Accountability Project. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.

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