Contraceptive Coverage Suits Raise Complex Questions About Government's Ability To Advance Women's Health

November 28, 2012 — Politico on Wednesday examined the central legal issues at stake in efforts by businesses and religiously affiliated entities to overturn the federal contraceptive coverage rules (Smith, Politico, 11/28).

The rules, which are being implemented under the Affordable Care Act (PL 111-148), require most health plans issued or renewed after Aug. 1 to cover contraceptive services without copayments or deductibles. HHS has given religiously affiliated entities, such as colleges and hospitals, a one-year delay period to come into compliance, and religious institutions, such as churches and synagogues, are exempt altogether (Women's Health Policy Report, 11/26).

Plaintiffs

The plaintiffs fall into two categories: for-profit companies with owners who oppose contraception because of their personal religious beliefs and religiously affiliated employers, such as sectarian universities and Catholic dioceses. Federal judges in Colorado; Michigan; and Washington, D.C., have temporarily halted enforcement of the rules for some for-profit businesses that have sued, while other judges in similar cases have denied the plaintiffs' requests for injunctions.

Meanwhile, judges have dismissed some lawsuits filed by religiously affiliated employers because they do not have to comply until next year and the details of compliance are still being worked out; therefore, it would be premature for the court step in.

Legal Issues

A central issue in the suits is whether secular businesses can exercise religion. The Obama administration argues that they cannot. However, Politico notes that the Supreme Court's Citizens United ruling recognized the exercise of First Amendment free speech rights by businesses, which perhaps suggests the court would agree with plaintiffs' claim that they have religious rights. The only court that has addressed this issue directly has sided with the government.

The plaintiffs argue that the contraceptive coverage rules impose a "substantial burden" because they would either have to violate their religious beliefs or face significant fines for noncompliance. Judges to date have issued mixed decisions on this issue.

Another central issue is whether the government's interest in ensuring women's health outweighs any burden on the practice of religion. Under the Religious Freedom Restoration Act, the federal government can impose a substantial burden on religious practice if it has a "compelling interest" and advances that interest in the least restrictive way possible.

Julianna Gonen, acting director of government relations for the Center for Reproductive Rights, said the government believes it has a compelling interest in women's health and equality.

Potential for Compromise

Although the federal government has pledged to continue working with religious organizations to reach a compromise on the issue, groups on both sides of the debate doubt that any changes will completely satisfy private companies, particularly those that self-insure.

Given the number of cases and the potential for conflicting opinions by different courts, the Supreme Court likely will have the final say, according to Politico (Politico, 11/28).