CORRECTION: Colorado Judge Grants Preliminary Injunction Against Birth Control Mandate

The preliminary injunction, granted in a suit brought by owners of an air-conditioning company in Colorado who "oppose birth control."

Ellen M. Blalock/The Post-Standard/AP.

Correction: The original version of this article contained an error based on my misreading of information received.  The injunction applies ONLY to the plaintiffs. My apologies for the error.

With just days to go before the August 1 start date for benefits under the Affordable Care Act ensuring access to contraception without a co-pay, a Colorado Judge has granted a preliminary injunction against the benefit and is allowing a challenge to go forward.

The legal action comes after the Supreme Court upheld the health-reform law last month and another suit against the birth control benefit was thrown out by a different court.

According to NARAL Pro-Choice America, this challenge was brought by the owner of a heating and air-conditioning business. The plaintiffs claimed that the rule constitutes a violation of their religious liberty. In effect, they are asking the court for permission to discriminate against their employees by denying them insurance coverage of birth control.

The judge today granted the business the temporary right to refuse to comply with the policy while the court prepares to hear the case.

The ACA policy, providing benefits for contraception without a co-pay as of August 1st, stands for all other employers. Only the plaintiffs are exempt for the time being.

It is a deep blow to millions of women who were literally just days away from attaining an essential preventive care and public health benefit for the first time.

Ninety-nine percent of all sexually active American women report using contraception at some point in their lives in order to exercise their fundamental rights to delay, space, limit childbearing or altogether avoid having a child, and for numerous health indications. In recent surveys, 34 percent of women voters report having struggled to afford prescription birth control at some point in their lives and, as a result, used birth control inconsistently.

Doctors and public health experts agree that birth control is a basic and essential component of women’s preventive health care. Under the ACA benefit, contraception without a co-pay is a benefit women earn through their employer-based policies and/or pay for out of their own pocket through their own insurance coverage. Over half of all pregnancies in the United States each year are unintended, and the U.S. has the highest rate of maternal mortality among countries of similar income and educational attainment. Increased access to contraception would help to dramatically reduce the number of unintended pregnancies in the United States while simultaneously improving the lives of women and mothers. Such benefits are particularly critical to low-income women, women living in poverty, Latina women, and women of color who are disproportionately represented among those who find birth control to be economically out of reach.

Churches, and other places of worship are exempt from the poilcy. Nonetheless, the United States Conference of Catholic Bishops, fundamentalist evangelical groups, and right-wing conservatives have consistently diminished the need to expand preventive health care for women under the ACA, including contraceptive care. Moreover, they have supported suits by private, for-profit employers with no religious purpose, like the owner of the air-conditioning company, to file suits against the policy.

“We are disappointed with today’s decision,” said Sarah Lipton-Lubet, policy counsel for the ACLU Washington Legislative Office. “It is unacceptable for employers – especially for-profit companies – to use their personal beliefs as an excuse to deny critical health coverage to the people who work for them.”

“Contraception is basic health care for women, and we are disappointed that the judge didn’t see it that way,” said Nancy Keenan, President of NARAL Pro-Choice America.

“Unfortunately, the people behind these challenges want to give every boss the right to deny his employees contraceptive coverage. If they get their way, owners of fast-food restaurants or heating- and cooling- companies who oppose contraception could refuse plans with contraceptive coverage. Fast-food restaurants and air-conditioning repair shops are not places of worship.”

“Just like the anti-choice politicians who are using the legislative process to attack birth control, these groups are turning to the courts in an attempt to undermine the greatest advancement for women’s health in a generation,” Keenan said.

“Access to birth control is a critical health and economic concern for women,” said Cecile Richards, president of Planned Parenthood Federation of America.

The Affordable Care Act has guaranteed a new standard of health coverage for every American, regardless of their employer’s personal political views. There is no reason why a private, for-profit business owner should be able to demand a personal exception from this standard—denying his employees the same level of coverage that others will have.”

“This is not religious freedom,” said Lipton-Lubet, “this is discrimination. Real religious liberty gives everyone the right to make their own decisions about their own health, including whether and when to use birth control. It doesn’t give anyone the right to impose their beliefs on others.”

In March, the U.S. Senate rejected a far-reaching attack on the contraceptive-coverage policy. As a result of that vote and the subsequent public backlash, many observers predicted that anti-choice members of Congress would refrain from attacking birth control.

To the contrary, these politicians and their allies have continued to target contraception, including holding the 33rd vote in the House attempting to repeal the health-reform law that makes contraceptive coverage possible. Anti-choice lawmakers also have recently introduced seven bills to cancel the benefit. For instance, Rep. James Sensenbrenner (R-Wisc.) introduced the Religious Freedom Tax Repeal Act of 2012 (H.R.6097). 

Rep. Sensenbrenner’s bill would allow any employer – even one in the private sector who owns a fast-food restaurant or a sporting-goods store – to refuse to provide this coverage based on his personal beliefs. The effect could place millions of Americans’ contraceptive coverage in jeopardy.

In addition to the attacks in Congress, 24 lawsuits have been filed by various anti-contraception organizations. Now that the law has been upheld, these challenges are beginning to move through the courts.

These politicians are, however, far out of step with the public. Planned Parenthood Federation of America notes that according to a recent Hart Research Poll, when it comes to employers providing full coverage for prescription birth control, voters see this issue as a matter of women’s health care and access to birth control and reject efforts to frame this as a religious liberty issue. By a 20-point margin, voters are more likely to say that this issue is a matter of women’s health care and access to birth control (56 percent) than a matter of employer’s religious liberty (36 percent) when it comes to whether religiously affiliated employers should be required to provide coverage for prescription birth control.