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Health Care / HEALTH CARE

Seven States Sue Over Contraception Law

photo of Meghan McCarthy
February 24, 2012

Seven states filed a lawsuit on Thursday against a controversial Obama administration contraception rule, adding a new legal wrench to the challenges against the landmark 2010 health care reform law.

The contraception rule, which requires all employers, including those with religious affiliations, to cover contraception free of cost for female employees, has ignited a firestorm of political point-scoring among Democrats and Republicans over recent weeks.

Attorneys generals from Florida, Michigan, Nebraska, Ohio, Oklahoma, South Carolina, and Texas filed the suit, arguing that the rule violates First Amendment freedom of religion rights and the 1993 Religious Freedom Restoration act. That law, passed overwhelmingly by Congress during the Clinton administration, requires the federal government to justify any burdens it places on the exercise of religion.


The Obama administration changed the original contraception rule last week, proposing a way to let religiously affiliated employers who object on moral grounds avoid paying for the contraception coverage. The administration ruled that insurers would have to pay directly. Religious leaders who vehemently opposed the contraception rule, particularly the Roman Catholic bishops, were not quick to embrace the change.

“The president’s so-called ‘accommodation’ was nothing but a shell game: The mandate still requires religious organizations to subsidize and authorize conduct that conflicts with their religious principles,” said Texas Attorney General Greg Abbott in a statement.

The states’ suit, which is joined by private plaintiffs including Catholic Social Services and the Catholic Mutual Relief Society of America, will add fuel to Republicans' arguments that the rule violates religious freedom. In contrast, Democrats have worked to frame the debate as one about women’s health care.

The Justice Department did not immediately respond to a request for comment. But in a response last week to a separate lawsuit from Belmont Abbey College, a Catholic college in North Carolina, the Obama administration argued that the suit should be thrown out because the contraception rule is not final.

“The forthcoming modifications, among other things, will require health insurance issuers to … offer contraceptive coverage directly to such organization’s plan participants who desire it, at no charge,” said the Justice Department. “At the outset, plaintiff’s suit must be dismissed for lack of jurisdiction because plaintiff has not alleged any imminent injury from the operation of the regulations.”

Melissa Rogers, the director the Center for Religion and Public Affairs at Wake Forest University's Divinity School, said that the original rule violated the Religious Freedom Restoration Act, but that last week’s change was a step in the right direction. Rogers spoke at a briefing on conscience issues and religion at the Brookings Insitutions's Governance Studies program on Thursday.

Rogers said that the new guidance that the Obama administration introduced last week could be broadened during the rule-making process.

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