Contraceptive mandate could face tough sledding in Supreme Court


The Supreme Court and the Obama administration, already headed for a face-off in March over the constitutionality of the healthcare law, appear to be on another collision course over whether church-run schools, universities, hospitals and charities must provide free contraceptives to their students and employees.

The dispute stems from one of the more popular parts of the new healthcare law: its requirement that all health plans provide “preventive services” for free. That category includes vaccines and such routine screenings as cholesterol checkups and mammograms. Starting this year, it also includes coverage of birth control pills, IUDs and other contraceptives.

Catholic leaders reacted fiercely when the administration announced in recent days that it would hold most religious institutions to that mandate, even those that have moral and religious objections to what some of their lawyers describe as “abortion-inducing drugs.”


Already two religious colleges have sued, and their cause got a major boost earlier this month from a unanimous Supreme Court decision that greatly expanded the definition of religious freedom.

Archbishop Timothy M. Dolan in New York, president of the U.S. Conference of Catholic Bishops, denounced the requirement as “unconscionable,” saying the church should not be forced “to act as if pregnancy is a disease to be prevented at all costs.”

Women’s rights groups, on the other side, say that without the law’s coverage, hundreds of thousands of women, including students at Catholic universities and workers at church-related hospitals, would be denied coverage for one of the most commonly used forms of healthcare.

“This is good health policy and good economic policy,” said Dawn Laguens, vice president at Planned Parenthood. “It increases access to affordable birth control, but it is up to an individual employee to choose it or not. That’s very much the American way.”

The administration agreed to a one-year delay of the rule, but starting next year, health plans, including those offered by religious institutions, must pay for “all FDA-approved forms of contraception,” said Health and Human Services Secretary Kathleen Sebelius. Employers who fail to provide this insurance will face heavy fines.

The law exempts churches, themselves, and some other religious entities that “primarily” employ and serve persons of the same faith. Catholic officials, however, say that definition is too narrow and excludes church-run colleges, hospitals and charities and many primary schools.


“For us, serving non-Catholics has been a point of pride, but we are punished under this rule for serving the common good,” said Anthony R. Picarello Jr., general counsel of the U.S. Catholic Conference.

The dispute already has become a significant political issue. The leading Republican presidential hopefuls have all said they would seek to repeal the healthcare law, but also would end the contraceptive-coverage requirement if they could not eliminate the law entirely.

If Obama wins reelection, however, the requirement seems likely to be fought out in court. Belmont Abbey College, a Catholic school in North Carolina, and Colorado Christian University near Denver have filed suit. College officials say the mandate forces them “to violate their deeply held religious beliefs.” The Catholic Conference has not yet decided on joining a lawsuit, but “the bishops are eager to pursue every lawful means to stop this mandate,” said Picarello.

The legal challenge got a major boost three weeks ago, when the high court strengthened the Constitution’s protection for religious freedom. In a 9-0 defeat for the administration, the justices said the 1st Amendment gives “special solicitude to the rights of religious organizations” in decisions about their employees.

At issue in that case was a clash between the rights of church employers and the government’s interest in protecting the rights of employees. The administration had backed a job-bias suit filed by a teacher who was fired by a Lutheran school. Churches and church schools are not exempt from civil rights claims, the administration argued.

But Chief Justice John G. Roberts Jr.said the Constitution does not allow for “government interference with an internal church decision that affects the faith and mission of the church itself.” He called the administration’s view “extreme” and “remarkable.” Legal scholars called his opinion the court’s most important for religious freedom in two decades.


Judy Waxman of the National Women’s Law Center said religious freedom is not threatened by the health-coverage requirement. “Religious freedom is guaranteed to the individual, and 98% of American women use contraception at some time in their lives. And that is true for Catholics as well,” she said.

But lawyers challenging the rule say the dispute is not about women using contraception, but about forcing the Catholic Church to pay for it. Hannah Smith, a former law clerk to Justices Samuel A. AlitoJr.and Clarence Thomas, filed the two college suits on behalf of the Becket Fund for Religious Liberty.

She described this month’s decision in the Lutheran school case “as a stinging rebuke to the Obama administration’s extremely narrow view of religious liberty. I was shocked they went ahead with this quest to force religious groups to pay for abortion drugs in violation of their religious convictions.”

Her suits say the mandate violates both the 1st Amendment and the federal Religious Freedom Restoration Act, which prohibits the government from putting a “substantial burden” on religious liberty.

The suits are at their early stage, and the administration is due to respond next month. If the case eventually reaches the high court, they would come before a tribunal with six Catholics among the nine justices.