On the last day of August, Judge Richard J. Leon of the U.S. District Court for the District of Columbia found for March for Life in its suit against the Department of Health and Human Services, among other agencies. March for Life is a secular, nonprofit organization, founded after Roe v. Wade, that opposes abortion in every form, including certain kinds of contraception, and organizes a pro-life march each January in Washington. March’s legal counsel had argued that the federal government had treated it differently from “similarly situated employers” and had thus violated the principle of equal protection when it refused to exempt the organization from the contraceptive mandate of the Patient Protection and Affordable Care Act on the ground that March for Life “is not religious and is not a church.”
Judge Leon claimed that Health and Human Services et al. had missed the point entirely: “The characteristic that warrants protection—an employment relationship based in part on a shared objection to abortifacients—is altogether separate from theism. Stated differently, what H.H.S. claims to be protecting is religious beliefs, when it actually is protecting a moral philosophy about the sanctity of life.” Thus, favoring religious groups in the matter is “regulatory favoritism,” since “moral philosophy” deserves to be treated equally with religious belief.
The government is expected to appeal the decision—and no wonder. Aside from its impact on the Church-state debate that is focused on one disputed section of PPACA, Leon’s ruling strikes directly at the basis of the Supreme Court’s intellectual tendency, starting with Planned Parenthood v. Casey in 1992.
In that notorious decision, Justice Anthony Kennedy declared that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Kennedy based his assertion of a “right” to homosexual “marriage” on the same logic, or “philosophy.” Critics of his argument have rightly argued that philosophy is not the same thing as the law of the land. Now comes Judge Leon with his finding that “philosophy” and religious conviction have equal standing in American courts of law, effectively turning postmodern liberal jurisprudence against itself to arrive at a legally conservative finding that boldly contradicts Casey. The consequences for this country could be dramatic, immense, potentially counterrevolutionary—whether the U.S. Circuit Court of Appeals for the District of Columbia overturns the decision, or doesn’t.