Dept. of Justice Requests Dismissal of States' Contraceptive Coverage Lawsuit, Calls College's Suit Premature

May 2, 2012 — The Department of Justice on Monday requested that a judge dismiss a federal lawsuit alleging that the new federal contraceptive coverage rules violate the First Amendment rights of religiously affiliated employers that oppose contraception, the AP/Miami Herald reports (Schulte, AP/Miami Herald, 5/1).

Case Background

The lawsuit was filed by attorneys general from Florida, Michigan, Nebraska, Ohio, Oklahoma, South Carolina and Texas. Pius X Catholic High School, Catholic Social Services, Catholic Mutual Relief Society of American and two private citizens also are plaintiffs.

The lawsuit alleges that religious employers that oppose contraception would be effectively forced to stop offering health coverage because of the new rules, which the suit contends would lead to higher enrollment in state Medicaid programs and increase patient volume at state-subsidized hospitals and medical centers.

The contraceptive coverage 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. Originally, the Obama administration exempted certain religious employers from covering contraceptive services for their employees, but it did not exempt religious organizations with more general missions, such as Catholic hospitals and universities.

After many religious leaders said the definition was too narrow, the administration said that religiously affiliated employers will not have to offer contraceptive coverage for their employees, but their health insurance companies will be required to provide no-cost coverage directly to women (Women's Health Policy Report, 2/24).

Details of DOJ's Request

In court papers, DOJ lawyers argued that the plaintiffs do not face an immediate threat of having to offer the coverage. They noted that the Obama administration has agreed not to enforce the rule until August 2013, giving religious groups a "safe harbor" while the rules are being finalized. In the meantime, the administration has promised to work with religious groups and existing health plans are grandfathered, the lawyers noted.

Nebraska Attorney General Jon Bruning (R), who is leading the lawsuit, dismissed the request. He noted that the Obama administration delayed the enforcement deadline until after the November election and has not provided details on how it plans to address religious groups' concerns in the interim. "Regardless of the continuous promises of change offered by the administration, the results are nothing more than bait and switch," Bruning said (AP/Miami Herald, 5/1).

DOJ Calls Geneva College Lawsuit 'Premature'

On Monday, DOJ also asked that a judge dismiss Geneva College's lawsuit against the contraceptive coverage rules, the Pittsburgh Post-Gazette reports. The Christian college claims that the rules will force it to pay for drugs or counseling that could lead to abortions. The college does not believe it would qualify for an exemption under the rules.

In a court brief, DOJ argued that the suit is premature. It said the college would not be subject to the rules until 2014, noting that the law might be altered before then to resolve its concerns. In the meantime, the government "will not bring any enforcement action against nonprofit organizations with religious objections ... if they meet certain criteria," the brief stated.

Gregory Baylor -- an attorney for the Alliance Defense Fund, which is leading Geneva's lawsuit -- charged that federal attorneys "don't want courts to address this on the merits because I believe they are nervous about their prospects." He also dismissed the government's argument that the law might be changed (Lord, Pittsburgh Post-Gazette, 5/2).