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Priest for Life's Father Frank Pavone speaks at the Rally for Religious Freedom held in front of the U.S. Court of Appeals for the D.C. Circuit on May 8, 2014. American Life League
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Obama’s SCOTUS nominee sided against Priests for Life in ObamaCare religious liberty case

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WASHINGTON, D.C., March 18, 2016 (LifeSiteNews) – Judge Merrick Garland, Barack Obama's choice to be the next justice on the Supreme Court, ruled against Priests for Life in a case involving the HHS mandate.

He also gave ObamaCare subsidies a second chance at life in a separate case.

The two rulings give a window into the philosophy of Judge Garland, whom the National Organization for Women referred to as a “cipher” with little paper trail on issues related to abortion or other feminist concerns.

ObamaCare's HHS mandate opt-out does not violate the Constitution

Priests for Life sued the U.S. Department of Health and Human Services (HHS) over its mandate that employers provide contraception, sterilization, and abortifacient drugs to female employees with no co-pay. The group can opt out of the provision by filing paperwork, which requires its insurance company to provide birth control for “free.”

Like the Little Sisters of the Poor, Priests for Life argues that this step also infringes on its freedom of religion by forcing it to participate in the process of contraceptive and abortifacient distribution, something the Roman Catholic Church describes as a “grave sin.”

When the pro-life organization appealed a lower court's ruling, a three-judge panel of the D.C. Circuit Court of Appeals ruled against them.

Supreme Court justices combined Priests for Life v. HHS with six other cases into one overall hearing on the HHS mandate. Oral arguments are scheduled for next Wednesday.

All three judges were appointed by Democratic presidents, and the decision was written by Judge Cornelia Pillard, an Obama appointee.

Priests for Life then asked the full D.C. Circuit Appeals Court to hear its case.

Judge Garland voted against Priests for Life's petition for an en banc review in a 6-3 majority, allowing the decision against the group to stand.

“Garland didn’t write anything separately on it,” Jay Wexler, an expert on church-state law at Boston University, told The Washington Post. But his vote indicates that Judge Garland “didn’t think the panel opinion denying the Priests’ religious freedom claim was clearly wrong.”

That is significant, because the panel's decision broke new legal ground in a way that could undermine religious freedom nationwide.

“We conclude that the challenged [HHS opt out] regulations do not impose a substantial burden on plaintiffs’ religious exercise” under the Religious Freedom Restoration Act (RFRA), they wrote.

However, the ruling went further, stating, “We also find no merit in Plaintiffs’ additional claims under the Constitution.”

That's further than the U.S. Supreme Court has been willing to go. While justices have not yet ruled on the matter, in recent years, the court has decided religious liberty cases such as the Hobby Lobby case by citing RFRA, without commenting on whether the HHS mandate violates the Constitution itself.

The three-judge panel's ruling would eliminate any potential defense Fr. Pavone, or the Little Sisters of the Poor, have against signing the waiver form and beginning the process of their insurance company offering abortion-inducing drugs under the current rule.

In a strongly worded dissent on the en banc motion, Judge Janice Rogers Brown wrote, “In a sense the government now fills the role formerly occupied by the church,” by decreeing right and wrong – and punishing dissent.

Defending Obama on sidestepping ObamaCare subsidy restrictions

In another case, Judge Garland's vote supported one of the pillars of the ObamaCare system: subsidies to purchase health insurance.

The Affordable Care Act states that taxpayer subsidies are only available to consumers who purchase health insurance on exchanges that were “established by the state.”

Yet many states chose not to participate. Instead, the Obama administration set up its own system in those states and gave taxpayer-funded benefits to everyone who enrolled.

In Halberg v. Burwell, the legal complaint stated this contradicted the ACA's statutory language and asked the court to stop it.

A three-judge panel on the D.C. Circuit ruled 2-1 that the Obama administration had violated the law. Both of the votes came from Republican appointees.

However, in that case, Judge Garland – who has been accused of being overly deferential to executive authority – voted with the majority to grant an en banc hearing before the whole circuit court.

That decision, he believed, needed further review.

Ultimately, the D.C. Circuit canceled those hearings – scheduled for December 17, 2014 – because the Supreme Court agreed to hear a similar case, King v. Burwell. Chief Justice John Roberts joined the court's liberal bloc in a 6-3 decision upholding the Obama administration's actions last June.

A window into Garland's legal philosophy?

His contrasting views on the two cases – that a ruling in favor of the HHS mandate did not need judicial review, while a decision holding the Obama administration to the letter of the law did – may provide further clarity about Judge Garland jurisprudence concerning religious liberty and executive branch power.

That may help explain why pro-life and First Amendment organizations are asking the Senate's Republican majority to refuse to hold any hearings on the nomination.

“The best path forward for religious liberty is to not hold any hearings or votes on any Supreme Court nominee at this time,” said Kelly Shackelford of the First Liberty Institute

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