The article to which this update is appended was originally published Wednesday, September 26th. The update was published on Monday, October 1st at 11:25 a.m.

UPDATE TO CONTRACEPTIVE COVERAGE LAWSUITS:

Shortly after the original article on this issue was published, a district court in Missouri made the first ruling on the merits in any of the contraceptive mandate challenges, dismissing all claims in O’Brien v. HHS. The court held, among other things, that providing contraceptive coverage is not a “substantial burden” on religious exercise barred by the Religious Freedom Information Act and that the religious employer exemption does not excessively entangle government with religion in violation of the First Amendment. 

The case involves a secular for-profit employer, but the arguments rejected by the court are representative of those found in the complaints filed by religiously-affiliated plaintiffs. The decision is a fairly readable primer on the controlling law in these cases. It illustrates that beyond these cases being premature in the case of the religiously-affiliated plaintiffs, the substantive claims are extremely weak. For this reason, the religiously-affiliated plaintiffs might not see any benefit in waiting until they have standing in cases that are likely to fail. The weakness of these cases may also explain their quantity. In addition to making a big pre-election statement, filing numerous cases increases the likelihood of finding one judge willing to depart from settled law or expand the reach of a statute, in an act of so-called “judicial activism.” 

Original article follows below.

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Thirty lawsuits have been filed by corporations challenging the Health and Human Services regulation requiring that most health plans cover contraceptives. The plaintiffs are primarily Christian-affiliated institutions, but include some secular for-profit companies as well. A survey of these cases yields some useful information as to what the “religious freedom” debate is all about.

The strangest thing about these cases is that the plaintiffs, with the exception of the secular for-profits, have not yet been required to provide contraceptive coverage and may never be. The Obama administration has exempted objecting religiously-affiliated organizations from the regulation for one year while the accommodation is negotiated and finalized. The administration has been extremely generous in allowing objecting institutions to take advantage of this “safe harbor,” even amending the eligibility requirements to include institutions that have provided contraceptive coverage in the past but recently discovered they were violating their religious beliefs by doing so.

Thus, the claim of Cardinal Timothy Dolan, quoted in a number of the complaints, that the safe harbor gives religiously-affiliated institutions “a year to figure out how to violate our consciences,” does not comport with the facts, to put it nicely. The safe harbor is not merely a delay. It is a period intended for continued dialogue. At this point, the religiously-affiliated plaintiffs do not know if they will ever have to provide insurance with contraceptive coverage, which is why the three cases decided so far have been dismissed.

Opponents of the regulation have claimed repeatedly that the problem isn’t that it will make contraception more accessible, but that its exception for religious organizations is too narrow. But, oddly, rather than arguing they meet the criteria for an exception or should, the plaintiffs in these cases argue that that they are not exempt. Why do this? Why not ask and argue for an exemption and sue only if the government does require that plaintiffs provide coverage for contraception? These cases are premature and courts are likely to continue to throw them out without reaching the merits.

It takes a lot of time and money to bring so many bad cases before the government has made you do anything you don’t want to. What’s the big rush?

I suspect there’s a looming deadline at play here that has nothing to do with litigation strategy: the election. Bringing these cases now, allows opponents of the Obama administration to say essentially, “Look, thirty lawsuits! What an unprecedented violation of religious freedom! Stop this man who has forced your humble bishop to sue.” These cases are politically useful because the fact that the administration let these institutions have their way for the time being and may forever isn’t what gets reported. And should the courts ever reach the merits of these highly dubious claims, it will be after November 6^th.

Beyond what the timing suggests about the political objectives, these cases reveal the nature of the objection to the policy. Plaintiffs are going to court claiming not to be exempt instead of arguing they should be because they don’t actually want an exemption. They want the whole law struck down. In many of the complaints, plaintiffs are not just asking the courts to bar enforcement of the regulation against their particular institutions for religious reasons, but explicitly seeking that the mandate be vacated in its entirety.

That the exception isn’t the problem is also evident in the support of religious contraception opponents for the challenges brought by secular, for-profit corporations. The United States Conference of Catholic Bishops cheered when a judge temporarily barred enforcement of the regulation in the case of a manufacturing company that was clearly not a religious organization eligible for an exemption. Cardinal Dolan has described the change to the regulation he would find acceptable: “All Washington has to do is say, ‘Any entity that finds these mandates morally objectionable is not coerced to do them,’ and leave it there.” The issue with this proposal, however, is that when you get to decide whether or not to do what the government says that is not what we call a law. In demanding that providing coverage be optional, Cardinal Dolan is claiming the government cannot regulate any health plan in a way that conflicts with his beliefs, no matter how secular the employer.

Many of the complaints in these cases contain a further bizarre argument that the inquiry into whether or not an institution qualifies for a religious exemption is so intrusive as to entangle the government in religion in violation of the establishment clause of the First Amendment. Now, as a matter of well-settled constitutional law, the government is not required to grant any accommodation whatsoever to those whose religious expression is burdened by a generally applicable law. However, the general consensus is that it should do so in some circumstances and the Religious Freedom Restoration Act requires this. But we can’t have any exemptions without a determination of who is exempt. This commonsense principle has been noted by courts upholding state contraceptive coverage mandates that contain religious accommodations identical to the one in issue. If the argument that granting an exception amounts to entanglement were adopted, it would harm the interests of a religious person who has a genuine need for an exemption from a law that burdens her religious expression, rather than a policy disagreement as seems to be the case here.

The potential unintended consequence of the intrusiveness argument is not the only reason it is striking. As currently written, the criteria for the exemption includes factors such as an institution’s corporate form, primary purpose, and who it hires and serves. This inquiry is relevant to whether insured persons have notice of and have consented to having their health plans governed by religious precepts.

The plaintiff institutions, on the other hand, are effectively demanding a less reasonable and more intrusive inquiry into the circumstances of individual plan participants. As Notre Dame notes in its complaint, Catholic doctrine does not prohibit the use of contraceptives to treat medical conditions. Therefore, the University is not purporting to have a sincere religious belief that bars providing coverage for contraceptives, but demanding the right to investigate why a woman has been prescribed contraception and the authority to adjudicate whether that prescription was justified by a medical condition of a type and severity deemed worthy of treatment by some unidentified arbiter.

Ultimately, the picture that emerges from these cases is not of religious adherents trying to alter the difficult balance between laws enacted for the general welfare and respect for individuals whose religious exercise stands to be limited. These cases reject the opportunity to compromise or even negotiate. They are an assertion of institutional religious power that appears to be aimed at influencing American politics and undoing policy put in place by officials obligated to represent Americans of all faiths.