The Catholic Legal Assault on the Contraception Mandate

| Tue May 22, 2012 3:16 PM EDT

On Monday, 40 Catholic agencies and institutions across the country launched a veritable legal holy war against the Obama administration, filing coordinated lawsuits against the Department of Health and Human Services over the proposed contraception mandate in the new health care reform law. The effort is being spearheaded by the US Conference of Catholic Bishops (USCCB), which has been clashing with the Obama administration for months over the mandate and other White House decisions that the bishops view as anti-Catholic.

The church certainly brings a lot of money and high-powered legal fire to the fight—the lawsuits were filed by the Jones Day law firm, where Supreme Court Justice Antonin Scalia once worked. But the Catholics' legal arguments may not be terribly persuasive, in large part because it's hard for them to get around the fact that they are asking for the right to impose their religious beliefs on a lot of people who don't follow them.

Civil libertarians think the administration is on very solid footing in defending the mandate. "This lawsuit is outrageous," said Rev. Barry Lynn, the executive director of Americans United for Separation of Church and State, said in a statement to Mother Jones. Under the current proposal, church-related institutions don't have to pay for birth control services. Apparently that isn't enough. The bishops want US government health care policy to reflect Catholic teachings, and they're looking to the courts to get what they want. The Obama administration should stand firm. Americans should not be denied birth control services just because one aggressive religious group is opposed to it."

This is the second time in recent months that Catholic institutions have been in court defending their right to deny people of all stripes access to contraception. The ACLU's Reproductive Freedom Project recently won its lawsuit against HHS over a federal grant through which USCCB provided services to human trafficking victims. The bishops had refused to allow subcontractors to use the federal money to refer women for reproductive health services. In 2009, the ACLU filed suit arguing that under the contract the USCCB (and by extension, the federal government) was unconstitutionally foisting Catholic religious beliefs on the larger public. (The Obama administration last year refused to renew the contract, prompting even more outrage from USCCB, which accused the administration of operating an "ABC policy," or "Anyone But Catholics.")

The arguments over the anti-trafficking contract echo the ones the Catholic agencies are currently making in their legal campaign against the contraception mandate. Jennifer Dalven, director of the ACLU Reproductive Freedom Project, says that the Catholic groups are likely to lose their lawsuits over the contraception mandate as well. She explains:

The original rule was perfectly constitutional. In fact, more than half the states already require insurance plans to include contraception, several with very narrow exceptions and some with no exception at all. Many of these laws were passed with broad, bi-partisan support. And now, with the modifications proposed by the Administration, any lingering concerns about the rule's constitutionality should be put to rest. Institutions with religious objections won't be required to contribute to birth control coverage for their employees. And in fact, the high courts in California and New York have rejected claims that requiring birth control coverage violates the First Amendment.

Real religious freedom gives everyone the right to make personal decisions, including whether and when to use birth control, based on our beliefs. It doesn't give one group the right to impose its beliefs on others, or to use religion as an excuse to discriminate by denying employees access to vital services. The fight they are waging isn't about religious liberty at all, but about whether a woman should have insurance coverage for birth control. When you stop and think about it, it's incredible that this is an issue in 2012. 

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