12 More Lawsuits Attack Contraceptive Coverage; Still No Good Case

Every few weeks, opponents of birth control manage to garner some media attention by objecting–again–to the federal contraceptive coverage rule [as mandated by the Affordable Care Act], which ensures that millions of women will have affordable insurance coverage for contraception without extra out-of-pocket costs. But time after time, it’s just more of the same.

This week, 12 new lawsuits were filed challenging the rule, more than doubling those already in play. The lawsuits have made a splash by virtue of their number, but when you take a moment to actually look at them, there’s nothing to see. The rule is constitutional, it violates no federal law and it’s incredibly important for women.

Our courts have long held that institutions that operate in the public sphere are not above the law. The Supreme Court has recognized that allowing employers to get out of similar laws “operates to impose the employer’s religious faith on the employees.” And indeed, the high courts of California and New York have both rejected claims that requiring coverage of contraception somehow runs afoul of religious liberty protections. Local Catholic Charities were the plaintiffs in those cases, just as they are in a number of the cases filed this week.

Both courts made great points that could bear repeating, especially with respect to the Religious Freedom Restoration Act arguments made in the new lawsuits. As the New York Court of Appeals explained, there is no “absolute right for a religiously affiliated employer to structure all aspects of its relationship with its employees in conformity with church teachings.” In other words, providing insurance coverage that includes contraception doesn’t infringe on religious liberty. The California Supreme Court, in turn, explained that mandatory contraceptive coverage “serves the compelling state interest of eliminating gender discrimination.” Which means that even if there were a burden on religion, the government can act to protect the best interests of women.

But the cases challenging the federal rule have even less of a leg to stand on.  That’s because, in addition to the exemption for churches and other houses of worship, the administration is putting in place a modification for a broader swath of institutions: The employer won’t have to pay for the coverage, and the employees will still get it. The plaintiffs’ approach to this nail in the coffin for their already weak claims? Try to pretend it’s not happening.

To see the endgame, it’s helpful to put these lawsuits into the larger context of anti-contraception advocacy. Just last week, the U.S. Conference of Catholic Bishops (which “applauds” the 12 new lawsuits) sent comments to the Department of Health and Human Services on the proposed modification expanding the institutions that will not have to take part in providing coverage to their employees. Instead of suggesting how the accommodation might work, the bishops stated five separate times that the only way to address their concerns is for the administration to reverse course and erase the coverage requirement altogether–for all women, working any and everywhere. That’s been their goal all along.

The bishops, of course, also maintain that contraceptives “are not ‘health’ services.” Tell that to the millions of women who depend on contraception to protect their health every day; to the infants who have better health outcomes because their mothers were able to plan their pregnancies; to the Centers for Disease Control, which hails family planning as one of the greatest public health achievements of the last century.

And that brings us back to what’s really going on here. The fight these institutions are waging isn’t about religious liberty at all. It’s about whether a woman should have insurance coverage for birth control; coverage that she can then decide what to do with, based on her own beliefs and health needs.

Reprinted by permission from the ACLU Blog

Photo by Flickr user Gnarls Monkey under license from Creative Commons 2.0


  1. Regarding this re-post from the ACLU Blog, Sarah Lipton-Lubet asserts too much nonsense to merit much response. This, however, cannot go without challenge: “The rule is constitutional, it violates no federal law and it’s incredibly important for women.” (1) No, the rule is not constitutional. The ruling takes the unprecedented step of attempting to define for religious organizations what counts as a religious organization. Thus, a parish church is exempt, but a charitable soup kitchen that serve the poor irrespective of their religious affiliation is not. (2) The rule violate the 1993 Restoration of Religious Freedom Act signed into law by Bill Clinton. (3) The ruling is NOT incredibly important for women. Contraception, sterilization and abortifacient drugs are ubiquitous. If the government were genuinely concerned that someone somewhere were not able to walk down to the local pharmacy to buy contraception, there would be nothing to prevent the government from providing contraception for that person. Nonetheless, the government has no mandate to compel religious objectors, half of whom are women, to pay for contraception, sterilization and abortifacient drugs against their conscience.

    • JNWesner says:

      Alex says: “If the government were genuinely concerned that someone somewhere were not able to walk down to the local pharmacy to buy contraception, there would be nothing to prevent the government from providing contraception for that person.” Alex must be financially able to purchase such commodities, and must live where they are readily available. Alexis, you’re more fortunate than many other women. A working mother may have to choose between contraception and food for her child, and may end up with another child to bear, raise, or abort. If an insurance company is willing, in its own self-interest, to provide “the pill,” whose religious practices are being violated? A Cardinal? (And Alex, if you’re a guy, I’d suggest “Butt out.”) And if he thinks Congress would pass a bill providing contraception, he’s way out of touch.

  2. My daughter is one who benefits from contraception for HEALTH reasons, not for contraceptives. She ended up in the Emergency Room, needing three units of blood transfusion, because she had been bleeding vaginally so profusely for so long. She could not afford to go to a doctor. If it had not been for Planned Parenthood providing her with the contraceptives, she would still be in dire straights. Her problem is still not under control, as of yet, but at least it is not so life threatening. She has now qualified for State aided Family Health Plus, and the hospital where she had the transfusions will provide her with free care over the next six months, and completely wrote off her nearly $9,000 hospital visit. Bottom line – contraceptives saved my daughter’s life. I also want to know if these same organizations who are opposing women’s contraceptives are trying to also disallow coverage for vasectomys for men, since that is a much more permanent “contraception”.

    • Thank you for sharing–I’m in a very similar boat to your daughter’s. I have chronic hormonal migraines that keep me in bed for anywhere from a couple of hours to a couple of days when I’m not on birth control, and I often had to go to the emergency room for them because they come with nausea that sometimes caused dehydration, just because I couldn’t keep anything–not even water–down. Birth control is what’s keeping me in school and at work. It baffles me that people think birth control is just some trivial thing that can be replaced by abstinence or condoms.

    • Iliana Echo says:

      One of my dearest friends is an evangelical Christian who uses The Pill for medical reasons. This kind of anti-birth control rhetoric drives her as crazy as it drives me.

  3. Since I own my own business, I pay for my own health insurance, but in the past I paid for my coverage through my work as an employee. It was part of my compensation package. I am now in my forties, and other than a few antibiotic prescriptions over the years, the only things I ever needed insurance for were for birth control and my two pregnancies. I think of all the hours I worked to pay for that insurance and the thousands of dollars it cost. The birth control was a small fraction of that investment. Unless these religious organizations plan to become their own insurers, then they need to stop butting in to the insurance companies that are providing these benefits, and also remember that while they may cut the check, it is the EMPLOYEE who earned the insurance. Not only do employees PAY for this insurance through their work, but their employer benefits through a tax break. It allows them to basically compensate the employee at a lower cost than if they were to give the employees the money in their paychecks and let them buy their own policies. To discriminate against the women they employ is immoral. And what’s wrong with saying women need birth control so that they and their husbands/partners can have sex withough getting pregnant? Does everyone on their payroll have to prescribe to the notion that sex can only happen on the rhythm method? Isn’t Viagra prescribed to men so that they can get it up? Are they instructed to only use it on the “rhythm” days? Perhaps these religious institutions should focus on something other than women’s sex lives. Sex is a part of health.

  4. Kristin says:

    The irony in all of this is that companies have without any grexing covered Viagra and other ED “medications”. A man’s got a right to get an erection, you know. And the Catholic Church will not butt into his “business”. But as soon as we begin talking about women and birth control, the issue goes all moral and legal and everyone begins screaming about who is spending whose money on whom. It’s a thinly disguised class war to keep women (minorities mostly) disenfranchised.

    • Kirstin,
      If you truly believe the church is out there to wage a war against women, you really need to research various Catholic charities.
      This is not an issue about spending money, it is not an issue about women being allowed to use birth control (has the church prevented anyone from obtaining birth control?)
      It is an issue about freedom of religion. If I believe that abortion is murder and that a child is a child no matter how small…. If I really believe that….should I be forced to pay for you to obtain an abortion or pay for your contraceptive pills that cause early abortions?
      would you pay for someone to view child pornography? Some things are moral issues, and in our country we have always had the right to hold our own views and to act accordingly. Perhaps you’d rather live in China?

      • JNWesner says:

        sue, I really believe war is immoral, but I’ve paid thousands over the past decade to wage war. Nobody can pick and choose the government programs they approve and fund only them. And “Perhaps you’d rather live in China?” What a cheap shot!

  5. The pill regulates painful periods as well as preventing very painful, unwanted pregnancies. Women should be rewarded for taking the pill. I took it during my entire five-year marriage and am so thankful I never got pregnant. Not every woman wants to or should have children.

  6. So there I was, at confession in Afghanistan. I was thinking out loud and said “I have an IUD, but I’m not using it for birth control, so it doesn’t count.” The priest corrected me and said actually it did. I asked him the last time he tried to by tampons in Afghanistan. Not surprisingly he really had no response. I have since left the Catholic church.

  7. The religiously affliated hospitals should just go completely private or shut down. Done. If they don’t want to provide coverage for contraception, they should close and focus their efforts on matters that won’t interfere with their religious tenets. Sorry to those who will “suffer” from these closings or lack of services, but churches should be able to say no and, if not, they don’t have to provide services.

    • Should Kosher delis shut down too because they don’t serve pork? What about Muslim businesses?
      Should vegetarian restaurants be shut down because they don’t serve meat?
      We are moving toward a socialist/communist society. History! History! History! Wake up!
      And yes, millions of people will suffer if churches “close down”. Research Catholic Charities. Think Red Cross.

  8. ProfBob says:

    U.S. court cases at the highest levels generally hold that you can believe whatever you want but you cannot always practice your beliefs. Believers in faith healing are prevented from practicing their beliefs on their seriously ill children, they may also be prevented from practicing faith healing on themselves because they are citizens and the government must protect them. The famous Holiness sect cases where the members drank strychnine and handled poisonous snakes is another illustration. However the recent O Centro case allowed believers to use an illegal drug.
    It puzzles me that any “faith in an unproven and unprovable belief can be so sanctified when the outcomes of such a belief may be contrary to provable outcomes of an opposing belief. For example, regarding contraception and abortion–unwanted children increase the taxes for education ($10,000 per year per child) and increase the likelihood of antisocial behavior and prison expenses.
    Many of these ideas are handled more fully in Book 4 of the free ebook series andgulliverreturns.info

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