Two 5-4 decisions on the final decision day of the Supreme Court’s term dealt with issues that illustrate the legal consequences of political tactics by today’s progressives. One demonstrated how progressivism’s achievement, the regulatory state, manufactures social strife and can do so in ways politically useful to progressives. The other arose from government coercion used to conscript unwilling citizens into funding the progressives’ party.
Under the 1993 Religious Freedom Restoration Act, any government action that substantially burdens religious practices will be subject to strict judicial scrutiny to determine if it, rather than some less intrusive measure, is necessary to achieve a compelling government interest. The Affordable Care Act, as supplemented by regulations, requires for-profit employers to provide health-care coverage that includes all 20 Food and Drug Administration-approved birth control methods.
These include four that prevent a fertilized egg from being implanted in the uterus. Some persons consider this tantamount to abortion and oppose these for religious reasons. Why did Congress write this clearly incompatible birth control mandate?
In the ACA, Congress simply required health plans to provide “preventive care” for women. An executive branch agency decided this meant the full menu of 20 technologies. So, during oral argument in March, Justice Anthony M. Kennedy asked: “What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”
The answer is: The constitutional structure we have is the kind progressives prefer, wherein more and more decisions are made by unelected and unaccountable executive-branch “experts” exercising vast discretion. In this instance, the experts were willing to provoke a predictable controversy that would be convenient for the Democratic Party’s “war on women” trope. Today, this war consists of subsidizing only 16 of 20 birth control methods. The court has held that some “closely held” businesses — often family-owned and adhering to religious practices — have a right to wage this war.
The court’s other end-of-term case arose from overreaching by government employees unions and their Democratic allies. At issue were the First Amendment rights of people herded into unions.
In the 1950s, about 35 percent of the private-sector workforce was unionized; today just 6.7 percent is. The labor movement and the Democratic Party’s funding depend on government employees, 35.3 percent of whom are unionized. So, in Illinois, two Democratic governors manufactured government employees out of home health-care workers, a growing cohort — and a tempting target for dues-hungry unions — in a nation with an aging population and many infirm elderly.
This certainly seems sensible as applied to the lead plaintiff, a woman caring for her severely disabled son. Because the court has now recognized her First Amendment freedom of association — which includes the freedom not to associate — and freedom from compelled speech, she no longer will be required to pay fees to a union she refuses to join. SEIU will have to look elsewhere for the approximately $10 million in fees it has siphoned annually from people like her. This is real campaign finance reform.