Every few weeks, opponents of birth control manage to garner some media attention by objecting – again – to the federal contraceptive coverage rule, 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, 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.
 
First principles of First Amendment law, as currently interpreted by the courts, are as follows: the Free Exercise Clause does not require any exemptions from a neutral law of general applicability. As the Supreme Court held two decades ago, in an opinion authored by Justice Antonin Scalia, to do otherwise would be to create a system “in which each conscience is a law unto itself.” Translation? If it applies equally and doesn’t target any faith, it’s not a First Amendment violation. The contraceptive coverage rule applies to everybody and doesn’t target anybody; end of story.
 
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 twelve 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.
 
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Anonymous

I disagree, this isn't about "whether a woman should have insurance coverage for birth control...". This is about we who feel we should not have to contribute financially to something that is against our fundamental (religious) beliefs.

If it is your health, your body and your "choice" then YOU pay for it. And, moreover, you can have people who agree with you help pay for it. If a woman wants birth control that isn't any of my business. So, don't make it my business by extorting funds from me to support something I believe to be wrong and we won't have a problem.

The forced participation in a health care program that condones, emphasizes and supports actions I am perosnally against is the issue. You're free to do as you choose, but you are not free to impose your beliefs on me. I am not imposing my beliefs on you, I am simply choosing not to participate in something I don't believe in.

Anonymous

I believe that men who contract a sexually transmitted disease have done so because they are behaving immorally by sleeping around. That is against my religious beliefs. Therefore, why should I as an employer offer health insurance coverage for these diseases? If you choose the behavior, then you must choose to pay for the consequential medical treatment. I am simply choosing not to participate in something I don't believe in.

Simon

^^^This. One thousand times this.

Anonymous

Sex is not a right. Mandatory insurance coverage for birth control is equivalent to mandatory insurance coverage for breast implants.

Anonymous

The arguement presented is flawed because the law is not equally applied. An individual churches or religious organizations can be exempt from the law and then the law gives wide discretion to the Secretary of HHS to determine which are religious organizations and which are not.

Anonymous

The arguement presented is flawed because the law is not equally applied. An individual churches or religious organizations can be exempt from the law and then the law gives wide discretion to the Secretary of HHS to determine which are religious organizations and which are not.

Anonymous

Ok, May 23rd Anonymous poster, you just did what the author claimed. You ignored the fact that the employer does not have to pay for birth control. Good job, did you even read the article and process it?

Anonymous

Wow, so May 23rd Anonymous poster does exactly as the author says, shoves the fact that the business does not pay for it under the rug. I applaud you.

Anonymous

Then should prenatal and reproductive help be covered by insurance companies? I pay for this under my plan, but I can't have any children anymore.

Anonymous

" The contraceptive coverage rule applies to everybody and doesn’t target anybody; end of story."

The contraceptive coverage rule applies to everyone, yes. It also applies to those who don't want it because it goes against their beliefs. I know this, you know this, the politicians know this, everyone knows this, especially those politicians who made this rule. Again, it is being FORCED on everyone, whether you want it or not. How then does it not target anyone? Why make it cover everyone in the first place? This rule targets everyone whether it is against your beliefs or willingly accepted. THAT is the end of the story. This should not be allowed.

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