The War on Contraception Enters the Courts

Forty-three Roman Catholic plaintiffs—including the archdiocese of New York and the University of Notre Dame—have filed lawsuits alleging that the Obama administration's contraceptive coverage requirements violate the First Amendment and the Religious Freedom Restoration Act. In case there were any doubts about the political nature of the lawsuits or the unpopularity of this war on contraception, as Salon's Irin Carmon points out, the Notre Dame lawsuit alleges repeatedly that it would be required to cover "abortifacients” or “abortion inducing” substances although the regulation explicitly excludes them (and the claim that emergency contraception induces abortion is erroneous.) That the lawsuit is cultural warfare, however, does not in itself mean that it is without merit.

Should the courts take these claims seriously? Will they? On the first question, I have argued at length elsewhere that both the constitutional and statutory arguments should be rejected. To allow institutions performing secular functions with taxpayer money and employing people of various faiths to exempt themselves from generally applicable regulations would be both normatively unattractive and unworkable. Had the Obama administration applied the regulations to religious institutions qua religious institutions the arguments would be more serious, but churches themselves are exempt from the requirements, and institutions affiliated with religious ones were further accommodated by being permitted not to provide contraceptive coverage directly.

Given the way the program is structured, the religious freedom arguments being advanced by the lawsuits is not just wrong but Orwellian. As a a federal judge recently pointed out with respect to a similar claim, the petitioners are asking for "the right to use taxpayer money to impose its beliefs on others (who may or may not share them)." This is not a right granted by either the First Amendment or RFRA. Of course, the fact the argument is weak doesn't mean that the Supreme Court won't take it seriously.

Eight years ago, as Ian Millhiser notes, the Republican-dominated California Supreme Court rejected an almost identical argument made against the state's coverage requirement. The only dissenter in the case was Janice Rogers Brown, the far-right crackpot who considers a wide array of state and federal economic regulations unconstitutional although she can't identify the constitutional provision they violate. That such arguments wouldn't have stood much of a chance ten years ago, however, shouldn't necessary inspire confidence. Ten years ago, the argument that a tax penalty on people who don't buy insurance represented an unconstitutional expansion of federal power wouldn't have gotten anywhere either. 

As the typical Republican on the federal courts becomes more like Janice Rogers Brown, I wouldn't rule out the possibility that what should be considered frivolous arguments will be accepted by a bare majority of the Supreme Court.

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