For one thing, Hans Bader of the Competitive Enterprise Institute (CEI) says it is not true that states in general already require coverage for contraceptives and abortifacients.
"Many states don't purport to regulate in this area at all," he explains. "And in other states, even though they have things dealing with contraceptives, you can just avoid those rules by self-insuring, or dropping coverage, or by opting for regulation under a federal law, ERISA (the Employee Retirement Income Security Act), that preempts state law in the area of employee benefits."
He writes in his blog that the Department of Health and Human Services "chose the narrowest state-level religious exemption as the model for its own. That exemption was drafted by the ACLU and exists in only three states (New York, California, Oregon)."
And Bader adds that it is not true that the Obama administration's rule must be legal because it is supposedly modeled after the insurance rules of states like California.
"The federal government is under tougher limits than the states," he points out. "The federal government is subject to something called the Religious Freedom Restoration Act (RFRA). It restricts federal regulators, but it does not restrict states."
And the CEI senior attorney says the mandate likely violates the First Amendment's Free Exercise Clause, as many secular employers are exempt from offering contraceptives and abortifacients due to a grandfather clause in the new healthcare law. Since the law contains the exemption for secular entities, Bader submits that it should include the same for religious ones.
Meanwhile, Priests for Life, an organization with 50 to 60 employees, is now the first group taking on President Obama's "revised" contraceptive mandate in federal court. (Listen to audio report)
The suit challenges the mandate on the basis of the Constitution and federal law, as the organization claims that its free exercise and free-speech rights, as well as its rights under RFRA, are violated.
It is "a mandate that directly violates their deeply held religious beliefs," says Rob Muise of the
American Freedom Law Center
. "Not only that, it also compels them to engage in speech -- that being counseling and education that promotes contraception, sterilization, and abortifacients -- contrary to their religious beliefs."
Muise believes the administration may have unwittingly awakened a "sleeping giant and united people of all faith," and he suggests a reason for why the Obama administration does not seem to understand what it is doing.
"I think they are such leftist, secular, progressive ideologues [who] are so bent on promoting their particular agenda that they would do it at any cost, including the cost of trampling all over the Constitution," he speculates. "And this isn't the first time that we've seen this from this administration."
Muise points to ObamaCare itself as an example, as it forces medical insurance coverage on nearly every individual and business in the country. Though the government is supposed to be of limited, enumerated powers, the national healthcare reform law is contrary to that, he says.