Two 5-4 decisions last week 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 case demonstrated how progressivism’s achievement, the regulatory state, manufactures social strife and can do so in ways politically useful to progressives. The other case 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 FDA-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 abortifacients for religious reasons. Why did Congress, having enacted RFRA, write this clearly incompatible birth-control mandate? Congress didn’t.
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.
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 after being made into government employees by government’s semantic fiat. 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.
The tenuous theory was home-care givers are government workers because their pay comes indirectly from government — from the Medicaid funds received by the persons who hire them.
Under a 1977 Supreme Court decision, government employees can be forced to pay certain fees to unions even if the employees do not wish to be in the union. In last week’s case, the court carved out an exemption for people like home-care providers who are not “full-fledged” government employees.
This certainly seems sensible as applied to the lead plaintiff, a woman caring for her severely disabled son. She no longer will be required to pay fees to a union she refuses to join. The Service Employees International Union will have to look elsewhere for the approximately $10 million in fees it has siphoned annually from people like her.
Today’s court — nine fine minds producing written explanations of their reasoning about important principles — has its own discord. It is, nevertheless, a lagoon of logic in the forest primeval of today’s overheated politics and overbearing government. Twice last week the court played its indispensable role as constable, policing portions of this forest where progressivism has produced government guilty of gratuitous bullying.
