Birth Control Lawsuits Have Shaky Legal Merit

President Obama’s religious accommodation in his rule requiring insurance plans to cover birth control has failed to placate elements of the Catholic community, and, with strong GOP support, they remain determined to sue. But do the lawsuits, the latest of which was filed Tuesday, have much legal merit? Possibly, but if judicial precedent is any indication, probably not.

The tweaked regulation says religious non-profits like universities and hospitals do not need to pay for free birth control coverage in their employee health plans, and can pass the cost on to the insurance company. (Churches and houses of worship are entirely exempt.) But like other entities, Ave Maria University, a Catholic institution, argues in a new legal challenge that affiliating itself with any access to contraception would violate its religious beliefs.

But barring a departure from precedent, the lawsuits aren’t set to go very far.“I don’t think they have much of a case under current precedent,” said Jessica Arons of the Center For American Progress. “Courts in New York and California have already upheld the exemption that was initially adopted by the Administration. And I think the further accommodation that the Administration has offered shows exceeding sensitivity to claims of religious liberty that are not required under the law.”

Adam Winkler, a constitutional law professor at UCLA, was more blunt. “This lawsuit is inspired by politics and nothing more,” he told TPM. “Even under the previously announced rule there was little chance of success.”

One avenue for a challenge is on First Amendment grounds. But the Supreme Court has emphatically said religious entities may not be exempted from generally applicable laws, with some exceptions that don’t apply to this issue. The second and more likely avenue to use is the 1993 Religious Freedom Restoration Act (RFRA), which says federal laws may only constitute an “incidental” (as opposed to “substantial”) burden on religious practices, that those laws must by justified by a compelling government interest and be narrowly tailored to meet that interest.

Former Bush administration lawyers David Rivkin and Ed Whelan argued in the Wall Street Journal that the mandate violates RFRA.

“The refusal, for religious reasons, to provide birth-control coverage is clearly an exercise of religious freedom under the Constitution,” they wrote. “The ‘exercise of religion’ extends to performing, or refusing to perform, actions on religious grounds–and it is definitely not confined to religious institutions or acts of worship.”

Rivkin and Whelan said the mandate fails a key RFRA test in that there are ways for the government to expand cost-free access to contraception that are less burdensome to religious beliefs, such as through health centers, public clinics and groups like Planned Parenthood.

Winkler posited that the RFRA challenge may have succeeded under the original birth control rule, but is a fool’s errand under the new one.

“The crux of Ave Maria’s complaint is that they will have to pay more for health insurance because of this law,” he said. “Under that same logic, a church that believed racial mixing is bad could complain that the building contractors they hire are legally required not to discriminate. It’s nonsense.”