(The Root) — A coalition of 43 Catholic institutions — including the University of Notre Dame, Catholic University of America, the Archdiocese of Michigan and the Archdiocese of New York — filed 12 lawsuits around the country this week, opposing the Obama administration's requirement for insurance plans to cover contraception without a co-pay.
While churches and organizations closely tied to a religious mission are exempt from the birth control mandate, as originally stipulated by the Affordable Care Act, the lawsuits argue that it violates the religious freedom of Catholic hospitals, universities and charities. And although regulators included an accommodation for such religiously affiliated institutions — they may exclude contraception coverage from their employee insurance plans, but the insurance company will be required to reach out directly to employees and offer contraception free of charge, without cost sharing — that compromise has failed to satisfy the lawsuit plaintiffs.
The rule goes into effect in August 2012 for most employers, but not until August 2013 for religiously affiliated institutions, which get a one-year reprieve.
"We have tried negotiation with the administration and legislation with the Congress — and we'll keep at it — but there's still no fix," Cardinal Timothy Dolan, the archbishop of New York, said in a statement applauding the lawsuits. "Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now."
As Sarah Kliff of the Washington Post reports, the challenge to the Obama administration's policy hinges on a law called the Religious Freedom Restoration Act:
Under that provision, signed into law by President Bill Clinton in 1993, religious institutions can challenge federal laws that put a "substantial burden" on their ability to exercise a sincere religious belief. And if they can prove a substantial burden, then it's up to the government to show two things: that the law furthers a compelling government interest and that that interest cannot be furthered in any other way that would be less restrictive to religion.
According to Ian Millhiser, senior constitutional policy analyst for the Center for American Progress, it should be easy to show that birth control access is a compelling government interest. In 2004 a similar case that Catholic Charities brought before the California Supreme Court (pdf) failed on the grounds that eradicating discrimination against a state's female citizens is a compelling interest.
"The California Supreme Court said that women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs," Millhiser told The Root. He also cited a 1984 U.S. Supreme Court case that ruled that this disparity, due in part to the cost of contraceptives and unintended pregnancies, is a form of discrimination against women.
"The government can propose other things that they may think are compelling interests here, such as protecting women's health, but under the case law they shouldn't have to do that," he said. "It's already established that laws that are directed at eradicating gender discrimination do meet the compelling-interest test."
Millhiser emphasized that the 2004 California Supreme Court, made up of six Republicans and one Democrat, was one of the most Republican courts in the country. That past precedent, however, is no assurance that courts in today's political climate will follow the same reasoning. As Millhiser put it, "I do not have faith that conservative judges believe the same things now that they believed before Barack Obama said them."
It will take a couple of years for the lawsuits to gain traction through the courts. But when the debate over contraception is newly contentious along political lines, this current wave of legal action could ultimately pose a threat to the health care reform mandate.
Cynthia Gordy is The Root's senior political correspondent.