Obama Administration Takes Aggressive Stance in Legal Fight Over Contraceptive Coverage Rules

February 25, 2013 — The Obama administration is forcefully defending its contraceptive coverage rules against court challenges, including by arguing that plaintiffs should be ordered to comply with the rules while the cases are resolved, Politico reports (Haberkorn/Smith, Politico, 2/25).

The rules, which are being implemented under the Affordable Care Act (PL 111-148), require most health plans to cover contraceptive services. On Feb. 1, the Obama administration proposed an accommodation for religiously affiliated employers that would ensure that they do not have to pay for contraceptive coverage but would require their health plans to provide the coverage directly to employees. However, the accommodation would not apply to for-profit businesses (Women's Health Policy Report, 2/21).

Nearly 50 lawsuits have been brought by religious groups and for-profit companies that argue the Religious Freedom Restoration Act prevents the administration from requiring them to provide contraceptive coverage that goes against their religious beliefs. While courts have placed many religious groups' cases on hold until the policy begins affecting them later this year, judges have granted temporary injunctions to at least seven private businesses.

Administration's Approach

In recent weeks, the Obama administration has appealed the majority of those injunctions. In a brief submitted to the 10th U.S. Circuit Court of Appeals, Department of Justice officials requested that judges reverse a lower-court decision granting a preliminary injunction to a business owned by a Catholic family.

"It is common ground that a religious organization can engage in the exercise of religion, ... but Hercules Industries is not a religious organization," DOJ lawyers wrote, adding, "The personal religious beliefs of the corporation's officers ... cannot provide a basis for the Hercules Industries plan to deny federally required employee benefits to Hercules Industries employees and their families."

White House allies -- including women's health advocates -- lauded the administration's steadfast support of the rules. Julianna Gonen, director of government relations for the Center for Reproductive Rights, said the government is rightly emphasizing that for-profit companies' religious connections are "too tenuous as to actually constitute a violation of religious burden."

Opponents of the policy disagree. Kyle Duncan -- general counsel at the Becket Fund for Religious Liberty, which is representing several plaintiffs in the lawsuits -- said that the contraceptive coverage accommodation "gives only unclear second-class-citizen protection to religious nonprofits, and it gives no protection at all to religious Americans who try to live their faith in the business world."

Both supporters and opponents of the contraceptive coverage rules expect the issue to eventually be decided by the Supreme Court (Politico, 2/25).