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As Legal Fight Over Contraception Reaches Critical Moment, Where Will The Courts Stand?

Louise Melling,
Deputy Legal Director and Director of Ruth Bader Ginsburg Center for Liberty,
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May 22, 2013

This blog was cross-posted to The Huffington Post.

Nearly 60 lawsuits have been filed across the country challenging the federal rule that employers include contraception in the insurance they provide employees. Four courts of appeals are now poised to hear arguments in these cases, and one of these many cases is likely headed to the Supreme Court.

The cases now being heard pose fundamental questions: Does the right to religious freedom include the right of a business or institution to impose its views on a diverse workforce? Given that 99 percent of American women use contraception in their lifetimes, and that access to contraception is fundamental to women’s equality, the stakes are significant.

The upcoming cases include:

  • On May 22, the Seventh Circuit will hear two cases. One is brought by Korte & Luitjohan Contractors, Inc., a family owned construction contractor in Illinois that employs about 90 workers. The other is brought by Grote Industries, LLC and Grote Industries, Inc., an Indiana-based, privately held manufacturer of vehicle safety systems. They have nearly 1500 employees.
  • On May 23, the Tenth Circuit will hear a case brought by Hobby Lobby Stores, a national craft supply retail chain of 500 stores in over 40 states, employing over 13,000 people, based in Oklahoma City. A co-plaintiff, Mardel, Inc, is a privately held bookstore and education company that sells a variety of Christian-themed materials, with nearly 400 employees across seven states. The court is hearing the case en banc in the first instance, an unusual step that signals the case’s significance.
  • On May 30, the Third Circuit will hear a case brought by Conestoga Wood Specialties Corporation, a family business that manufactures wood cabinets and specialty products and employs 950 people.
  • On June 11, the Sixth Circuit will hear a case brought by two Michigan-based transportation and medical manufacturing companies that, along with their subsidiaries, have over 660 employees in the U.S.

Combined these businesses employ nearly 17,000 people. And these five cases represent just a fraction of the number of employees who would be affected by these lawsuits.

In the past, in different contexts, religious objections were raised to anti-discrimination measures. During the civil rights era, religious objections were invoked to resist integration in restaurants, marriages, and university admissions. Religious objections were also raised to rules requiring that women and men be compensated equally. In all of these instances, the courts rejected the claims.

The move to require employers to include contraception in insurance is a similar advance, this one for women’s equality. The rule at issue was adopted to address inequities in health care, by which a service only women need was all too often excluded from coverage. And it advances our equality. As the Supreme Court has stated, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

The question is, “what will the courts do this time?” In America, we are all entitled to our religious beliefs, but no one’s beliefs make it okay to break the law and discriminate against others.

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