Obamacare's Birth Control Mandate Attacked by Judge Who Was Approved in 2005 "Nuclear Option" Deal

Reporting on Politics and Policy.
Nov. 1 2013 1:47 PM

Obamacare's Birth Control Mandate Attacked by Judge Who Was Approved in 2005 "Nuclear Option" Deal

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Janice Rogers Brown, confirmed under threat.

Photo by Win McNamee/Getty Images

Francis and Philip M. Gilardi own Freshway Foods and Freshway Logistics in Ohio. They're also Catholics; they also opposed the contraception mandate in the Affordable Care Act. So they sued to stop it, with the conservative American Center for Law and Justice representing them in court.

And they've won. A panel of the U.S. Court of Appeals for the D.C. Circuit has sided with the Gilradis; in her decision, Judge Janice Rogers Brown argues that the government's case was laughable, and that the mandate clearly "trammels" religious freedom.

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The government, relying on what is perhaps an incomplete understanding of corporate law, argues the Gilardis lose the ability to make such a claim by taking advantage of state incorporation law. And as a corollary to the government’s expansive theory, the party being   regulated—the corporation—cannot make a free-exercise claim, as it is not an individual capable of exercising religion. So, in the government’s view, there is no corporate analogue,   and the individual right disappears into the ether... a parade of horribles will descend upon us, the government exclaims, if religious beliefs could serve as a private veto for the contraceptive mandate. Hyperbole aside, we note it was Congress, and not the courts, that allowed for an individual’s religious conscience to prevail over substantially burdensome federal regulation.

Who is Janice Rogers Brown? In 2003, while an associate justice on California's Supreme Court, she was nominated to the D.C. Circuit but filibustered by the Senate Democrats. She was only confirmed in 2005, when Republicans threatened to end filibusters for judges—the "nuclear option."

Rogers Brown, who's African-American, was a particularly good mascot for the multi-platform conservative campaign against Democrats. "Janice Rogers Brown is a black woman who happens to think for herself and has rejected knee-jerk obeisance to left-wing orthodoxy," argued Newsmax at the time, in a pretty standard take. The Democrats warned that she was a wild libertarian who'd drive the court too far right. But there were only 45 Democrats, and they lost the staring contest when the "Gang of 14" moderate senators agreed to approve Brown and two other stalled nominees as long as the filibuster wasn't nuked.

On the bench, Brown has ruled basically like Democrats worried she'd rule. This week they voted en bloc to end a filibuster on Patricia Millett, an Obama nominee who would, theoretically, start to outvote judges like Brown. "We're worried about that court being a significant bastion for administrative law cases on Obamacare," explained Illinois Sen. Mark Kirk. So he joined the filibuster—right before he was proved right, again.

David Weigel is a Slate political reporter. You can reach him at daveweigel@gmail.com, or tweet at him @daveweigel.