I wonder if folks at HHS were in contact with folks at Justice before they decided to announced a few weeks back that health insurers must cover contraceptives. While this requirement isn’t directly pertinent to the constitutionality of the ACA, it weakens the government’s defense in two extra-legal respects.
First, the laws’ defenders want to focus on the issue of how the individual mandate alleviates the problem of the uninsured facing unexpected and catastrophic medical costs, which they then impose on the public to the tune of tens of billions of dollars.* But the headlines have been dominated by the issue of health insurers being required to pay for the very expected and relatively minimal (as low as $9 a month for birth control pills) cost of non-OTC contraceptives. This very much makes it seem like the ACA is as much about expanding federal power for the benefit of liberal constituencies as about the need for coordination in the interstate market for medical services to avoid problems related to the uninsured.
Second, while liberals don’t typically associate federalism with the protection of liberty, conservatives do, and it’s the conservative Justices whose votes the government needs. One of the “swing” Justices, Anthony Kennedy, waxed eloquent on the importance of federalism to individual rights just last term. Meanwhile, every one of the five conservatives on the Court is a Catholic. So pretty much the last thing you’d want if you were an Obama Administration lawyer defending the ACA is for HHS to announce just before oral arguments that henceforth under the ACA Catholic organizations, over the strong objections of the Church, will be compelled by the federal government to violate what they see as their Catholic religious obligations and provide contraception coverage to their employees. While the Flukes of the world see this as a victory for women’s rights, I suspect that Kennedy and Roberts see it as a federal infringement on religious liberty [and not just any religious liberty, but their co-religionists' religious liberty!], with more to come if the ACA is upheld.
I don’t know what the odds are that the Supreme Court will rule in favor of any of the plaintiffs’ challenges, but I’m pretty confident that the odds in favor are higher than they would have been if HHS had kept its bureaucratic mouth shut about the contraception mandate for several more months.
*Just after I posted this, I ran across a great example, this statement by former acting Solicitor General Neal Katyal:
The challengers to the reform say that never before has the government forced people to buy a product. We’re not forcing you to buy a product. Health care is something all Americans consume, and you don’t know when you’re going to consume it. You could get struck by a bus, you could have a heart attack and the like. And if you don’t have health insurance, then you show up at the emergency room. The doctors are under orders to treat you — as any Western, any civilized society would do. And who pays for that? Well, ordinary Americans pay for that. They’re the ones who have to pick up the tab for those who don’t have insurance. We are not regulating what people buy, we’re regulating how people finance it.
Notice how little the contraception mandate fits with this argument.