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One Down and 23 to Go: Judge Tosses Baseless Challenge to Birth Control Coverage

Brigitte Amiri,
Deputy Director,
ACLU Reproductive Freedom Project
Sarah Lipton-Lubet,
ACLU Washington Legislative Office
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July 18, 2012

Tuesday, a Nebraska federal court rejected a lawsuit challenging the Obama administration’s rule requiring insurance plans to cover contraception. This was the first of two dozen challenges to be decided. We applaud the court’s decision and hope that the judges in the other cases follow the Nebraska federal judge’s lead.

As we’ve explained before, these lawsuits don’t have much of a leg to stand on: Insurance covers a broad range of benefits, some of which any given individual will never use. The rule simply requires that employers and insurers treat coverage for contraception the same as other preventive medical care. It’s up to the employee – as it should be – to decide whether to access that coverage in her private life.

The Nebraska lawsuit was always especially out there. Or, as the court put it,“based on layers of conjecture.” Basically, a few attorneys general – from Nebraska, Texas, Michigan, South Carolina, Florida, Ohio, and Oklahoma – tried to elbow their way to the table. They spun an elaborate story alleging that employers in their states would drop all health care coverage if these rules go into effect (although we know that in the 28 states with contraceptive equity rules, no such thing has happened), forcing droves of new citizens on to the Medicaid rolls, thereby burdening the state government. The court properly rejected this ridiculous argument as “conjecture,” and because individuals with jobs generally don’t financially qualify for Medicaid.

You might be asking yourself, “when did these states became so concerned about their uninsured citizens – didn’t most of these states try to take down health care reform?” Yes, ironically they did. Furthermore, three of these states – Texas, South Carolina, and Florida – are also refusing to participate in the Affordable Care Act’s Medicaid expansion, which would allow the federal government to pay the full cost of insuring their states’ uninsured. So much for consistency.

The court also ruled that the attorneys general did not have the right to raise religious liberty claims – those are individual, not state, rights. Indeed, it seemed odd that the attorneys general could side with a few entities that objected to providing contraception coverage, and throw all of the women in their state under the bus. But these baseless lawsuits were never about religious liberty anyway. They are part of a long series of attacks on birth control by those who want to roll back women’s rights.

Real religious freedom gives everyone the right to make personal decisions – including whether and when to use birth control – based on our own beliefs. It doesn’t give one group the right to impose its beliefs on others by denying employees access to critical health services. The courts in these cases should continue to affirm that basic principal.

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