Contraceptive coverage facing challenges in the courts

Yesterday an important piece of the Affordable Care Act comes into effect: the contraceptive coverage and preventative health care for women provision.  Among other services, this preventive services provision requires new insurance plans to provide all FDA-approved forms of birth control to women with no co-pay or deductible.  By 2014, it is expected that 90% of private health care plans will come under the reach of this provision, and that eventually it will apply to all insurance plans. This is a great step forward for women’s health; unfortunately, it is already being challenged in the courts.

The provision is under legal attack by some who are pushing a skewed interpretation of the First Amendment’s “free exercise” clause.  They claim that their religious beliefs are infringed by the requirement that they offer insurance plans to their employees covering the full range of preventative health service, including no-cost contraception.  Expressly religious organizations like churches, synagogues, and mosques are already exempt from the provision.  Religiously affiliated organizations--for instance, charities, colleges and hospitals with ties to a religious institution, even though they operate independently--have been exempted for a year while the administration works with them on a compromise that will still allow employees to access insurance with full preventative services while respecting the organization’s affiliations.  Nonetheless, legal challenges from some religious employers are being brought to overturn the provision on the grounds that it violates the organizations’ freedom of religion.

U.S. District Judge James Boasberg dismissed a suit brought by Belmont Abbey College, a Catholic college in North Carolina, holding that the school had not yet suffered any harm since they were exempted from the requirement for a year and the government may come up with a compromise acceptable to them. Another suit brought by seven states was dismissed on the grounds that they did not have standing, since the states failed to prove they would suffer actual harm by the enactment of the provision.  Wheaton College, an evangelical school in Illinois, has joined with the Catholic University of America in a suit against the provision. As in the other lawsuits, the schools say that their religious liberty is violated by having to provide employees with insurance plans that cover contraception.

Now, individuals who are employers are trying to claim that their personal religious beliefs should exempt them from having to provide insurance covering no-cost preventative services to their employees.  They assert that because they do not personally believe their religion allows them to use contraception, their exercise of religious freedom would be violated if they were required to provide a plan that allowed their employees to choose to take advantage of contraceptive coverage.

In Colorado, a family-owned air conditioning company filed a lawsuit against the contraception provision citing a violation of their personal religious freedom. On July 27th, Judge John L. Kane Jr. ruled that the government’s interest in health care was overridden by the Newland family’s claim to constitutional rights. Accordingly, Judge Kane imposed an injunction on the requirement that the Newlands’ business comply with the provision.  Judge Kane says he is going to address whether a non-religious company, in this case the HVAC company owned by the Newlands, can invoke the personal religion of the employers as a reason for not complying with this aspect of the ACA.

With the numerous challenges to this provision making their way through the federal courts, it is possible that one or more will wind up in the Supreme Court sooner or later.  At that point, the Court would be required to determine whether the First Amendment’s freedom of religion clause allows religiously affiliated institutions and individuals holding a personal belief to impose their faith on others by denying their employees the right to make personal decisions about their health care and well-being and access to comprehensive preventative health services.

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Kagan Dissent Demonstrates Strong Counterweight to Scalia

Justice Elena Kagan’s first published dissent -- in Arizona Christian School Tuition Organization v. Winn, a case concerning the ability of citizens to sue the government for violations of the First Amendment’s establishment clause -- demonstrated a strong rhetorical flourish that has caught the attention of many court observers. Arizona had passed a law allowing citizens to receive a tax credit of up to $500 for contributions to school tuition organizations that give scholarships to children attending religious schools. If the contributions had been made directly from the government, it would clearly have run afoul of the First Amendment. But because the funding of religious institutions operated through the mechanism of a tax credit, a 5-4 majority of the Supreme Court, in an opinion by Justice Kennedy, held that affected taxpayers did not have standing to sue Arizona because they couldn't prove that their money was being spent to support religious institutions. The Atlantic’s Garrett Epps wrote that the dissent successfully did what only Justice Scalia has previously accomplished, which is to speak “directly from the bench to ordinary Americans and enlist them on her side of legal disputes.” He quoted the following passage from Kagan’s dissent, which analogized Arizona’s scheme to the bank bailout:

Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.

Stanley Fish wrote in the New York Times that Kagan’s argument concerning Arizona’s “end run” around constitutional prohibitions succeeded in “dismantling the majority’s reasoning piece by piece until there is nothing left standing.” Fish discussed another section of the dissent in which Kagan addressed hypothetical tax credits for religious piety:

Next she takes advantage of, without explicitly naming, her own religious identity: “Suppose a state desires to reward Jews — by say, $500 per year — for their religious devotion.” Would it matter to non-Jewish taxpayers “if the state allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend” directly? And if Jews are too small a sample, how about subsidizing the purchase by Catholics of crucifixes? The state “could purchase the religious symbols in bulk and distribute them … or it could mail a reimbursement check to any individual who buys her own and submits a receipt … or it could authorize that person to claim a tax credit equal to the price she paid.”

“Now really,” she comments with only a bit of tongue in cheek, “do taxpayers have less reason to complain if the State selects the last of these three options?” (Notice that the question is asked in the negative and thus made at once softer and harder.) This time she doesn’t answer the question, but only says quietly (and devastatingly), “The Court today says they do.”

A promising beginning for Justice Kagan.

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