This is a silly and uninformed editorial. There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it. But this editorial is about the legal challenge to the mandate. And it calls that challenge “built on air.” Actually, it is built on the Constitution and a federal statute, and we’ll soon see whether those foundations remain solid enough to support it.
The editorial does mention the Constitution and the federal statute. But what it says misrepresents both. It also fails to mention that the original mandate — and not the putative change in plans alluded to by the President in February — is at present the law. The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience. And it makes the following colossally stupid statement about RFRA: “In 1993, Congress required government actions that “substantially burden a person’s exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy.” Can anybody figure out how the second sentence follows from the first? Did anyone at the Times think to check with a lawyer before writing this? How about a law student?
There are arguments to be made in defense of the mandate. Surely the government will make them in court. But this editorial neither makes nor even references any of them. What an embarrassment.