State Attorneys General File Suit Challenging Contraception Subsidy

Various state attorneys general have filed suit in federal court in Nebraska. The suit challenges the constitutionality of a regulation promulgated by the Federal Government which would “coerce religious organizations, institutions, care providers, outreach groups, and social service agencies, among others, to directly subsidize contraception, abortifacients, sterilization, and related services in contravention with their religious beliefs.” A copy of the pleading can be found here. The claims are based on the First Amendment and the Religious Freedom Restoration Act.

At base, the regulation at issue requires most employers (now switched to “insurers” in an attempt to mollify critics) to include contraception in their healthcare plans without charging a co-pay. Churches and houses of worship are exempt. Institutions such as Catholic hospitals do not have to provide the coverage directly, but their employees still must receive contraception through their insurance companies with no co-pay.

Some of the plaintiffs are sympathetic figures. For example, Stacy Molai is Catholic missionary and declares in the pleadings that she would choose to drop her current Cigna health plan, which does not have contraceptive coverage, rather than be forced to pay for a plan that allows services for others. Molai has an incurable chronic disease and depends on her health insurance for treatment.

Legally, this case has an uphill battle. In 1990 in Employment Division v. Smith, the Court held that the First Amendment’s protections of religion do not permit a person to use religious beliefs or motivations as a reason not to obey laws of general applicability such as laws against polygamy or laws requiring young people to register for selective service. To prevail in the courts, the plaintiffs will have to do a good job of distinguishing Smith.