March 8, 2012 — Opponents of the Obama administration's contraceptive coverage rules are taking their fight to the courts, the Washington Post reports.
Since November, at least eight lawsuits challenging the rules have been filed in federal district courts. The plaintiffs in the suits include religiously affiliated academic institutions, not-for-profit groups, a Catholic television network, two private citizens and the Republican attorneys general of six states.
The lawsuits allege that the new federal rules on contraceptive coverage violate the First Amendment rights of religiously affiliated employers that oppose contraception (Aizenman, Washington Post, 3/7). The rules implement a provision in the federal health reform law (PL 111-148) that requires health plans to cover preventive services without copayments or deductibles. Religiously affiliated employers will not have to cover contraceptive services for their employees, but their health insurance companies will be required to provide the coverage directly to women at no additional charge (Women's Health Policy Report, 2/24).
According to the Post, plaintiffs in the cases must clear a legal hurdle that was established in 1990 by the Supreme Court's ruling in Employment Division v. Smith. The court found that if a law is "neutral and generically applicable" -- meaning it does not specifically target a religious group -- then individuals must comply, regardless of any burden on their free exercise of religion. The decision has been cited by the highest state courts in New York and California in blocking challenges to state contraceptive coverage laws that are nearly identical to the federal rules, the Post reports.
Plaintiffs in the current lawsuits contend that the federal requirement is different from state laws because it includes an exemption for other types of groups, including small employers and health plans that existed before the law was enacted. Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, which is representing some of the plaintiffs, said, "This indicates that the law is not generally applicable."
Brigitte Amiri of the American Civil Liberties Union's Reproductive Freedom Project countered that most of the other exemptions are methods of phasing in provisions of the health reform rules over time. "They're not exemptions that have to do with substance, they're logistical," she said.
The plaintiffs also argue that the federal rules violate a 1993 law that essentially replaced the "neutral and generally applicable" standard with a much stricter one, according to the Post. The law states that even a generally applicable federal law cannot "substantially burden" a person's exercise of religion unless it furthers a "compelling government interest" by the "least restrictive means." The plaintiffs contend that because the vast majority of health plans cover birth control, the government's aim of universal coverage is not compelling and likely could be accomplished through other means, such as having the government directly provide contraceptives to employees of religious organizations. According to Amiri, this argument will be difficult to prove, given that the administration already has made accommodations for religious employers.
Some Republicans expect the matter ultimately will be decided by the U.S. Supreme Court. The Post notes that such a decision would be unnecessary if the high court invalidates the federal health reform law in a separate case currently before the court (Washington Post, 3/7).
Rep. Fortenberry not Giving Up on House Bill
On Wednesday, Rep. Jeff Fortenberry (R-Neb.) pledged to "rebuild the momentum" for his bill (HR 1179) that would allow health plans with moral or religious objections to deny any type of coverage required under the health reform law, CQ Today reports. The bill, which would dismantle the contraceptive coverage rules, has 221 House co-sponsors, but Fortenberry acknowledged on Wednesday that progress has stalled (Ethridge, CQ Today, 3/7).
National Journal notes that Fortenberry's bill is unlikely to see action any time soon, as the Energy and Commerce Committee has not scheduled a markup of the legislation (McCarthy, National Journal, 3/7).
A Fortenberry aide said the lawmaker had expected House leaders to move the bill, even after the Senate's defeat last week of companion legislation. Fortenberry said the narrow margin of defeat for the Senate measure sends "a pretty strong statement" of support for reversing the rules. He attributed the legislative delay to a lack of public focus on religious liberties (CQ Today, 3/7).
Debra Ness, publisher & president, National Partnership
Andrea Friedman, associate editor & director of reproductive health programs, National Partnership
Marya Torrez, associate editor & senior reproductive health policy counsel, National Partnership
Melissa Safford, associate editor & policy advocate for reproductive health, National Partnership
Perry Sacks, assistant editor & health program associate, National Partnership
Cindy Romero, assistant editor & communications assistant, National Partnership
Justyn Ware, editor
Amanda Wolfe, editor-in-chief
Heather Drost, Hanna Jaquith, Marcelle Maginnis, Ashley Marchand and Michelle Stuckey, staff writers
Tucker Ball, director of new media, National Partnership