“Crisis Pregnancy Center Fighting for Right to Create More Crisis Pregnancies”

By Gregory M. Lipper

That’s how Tara Murtha describes the lawsuit brought by Real Alternatives and its three (male) employees seeking to enjoin application of the Affordable Care Act’s contraceptive-coverage regulations. This lawsuit is different than the ones currently before the Supreme Court: Real Alternatives is not a religious organization, and its employees argue that the mere availability of contraceptive coverage in their own plans violates their rights under RFRA—even though nobody is making them use that coverage.

The plaintiffs are represented by Alliance Defending Freedom, a Religious Right legal organization that has also represented many of the for-profit corporations and nonprofit religious organizations bringing free-exercise challenges to the coverage regulations and accommodation. Unlike most of ADF’s other clients in these cases, Real Alternatives acknowledges that its opposition to the coverage regulations arises purely from its opposition to the use of birth control; there is no claimed religious basis for this opposition.

The decision rejecting their claims was written by federal district judge John E. Jones III, an appointee of George W. Bush. The court made quick work of the plaintiffs’ argument that the Equal Protection Clause requires the government to provide (the secular) Real Alternatives with the same exemptions that it gives to (religious) houses of worship. The court pointed to the presence of the Free Exercise Clause in the First Amendment and the special solicitude historically provided to religious organizations:

The effect of the Contraceptive Mandate upon religious beliefs, respect for religious groups, and the value of religious freedom are all central to the Departments’ rationale in crafting the exemption. These words stand for an ideal that is of predominant importance to law-making in the United States. Indeed, it occupies a prominent role in the Constitution itself.

The court also noted that if accepted, plaintiffs’ argument would make it impossible to govern, or to offer tailored religious accommodations: “A finding such as that which Plaintiffs would have us make today ultimately leads to an all or none scenario: either the determination that any singular moral objection to a law that contains religious exemptions also has standing, or else that all such exemptions should fail.”

As for the employees, they argued that the government violated the Religious Freedom Restoration Act by forcing them “to obtain and maintain health insurance which includes coverage for drugs and devices that violate their religious beliefs.” The court concluded that the plaintiffs lacked standing to pursue this claim; but just in case, the court also addressed the merits.

On the merits, the court held that the plaintiffs did not experience a “substantial burden” under RFRA, because they aren’t actually forced to do anything. Rather, the employees “may continue on practicing their religious beliefs as they see fit and, like any other health care participant with religious objections, need not invoke the provisions of the coverage to which they object.”

In addition, the court concluded that even if the employees were substantially burdened by receiving contraceptive coverage that they aren’t required to use, the government has a compelling interest in applying its regulations to the plaintiffs’ plans. The employees argued that the government has no compelling interest in making contraceptive coverage available to people who don’t want it. But the point of insurance is that you never know if you’re going to need it, especially in an emergency. As the court explained, “situations in which an individual may choose to use contraceptive care, particularly emergency contraceptive care, often arise suddenly and without forewarning.”

Finally, the court pointed out that the plaintiffs might have family members who are covered by these same policies and don’t share their spouses’ or parents’ views about contraception:

Often, as is the case with Plaintiffs today, entire families are covered by one plan. Health care coverage decisions therefore are not left wholly to the individual but are often made in the context of the family. Yet there is no guarantee that every member of a family covered by a plan feels similarly regarding contraceptive services. If families with religious objections to contraceptive coverage are able to opt out of such coverage, the determination of whether to do so is left to the collective family unit. This collective decision could create untold tension and familial strife should disagreement over contraceptive coverage arise, which is more likely now that children up to the age of twenty-six may be covered by their parents’ plans.

As the court recognized, the law lets people decide for themselves whether or not to use contraception. But it doesn’t give people the right to dictate others’ choices—not even their family members. The days when the head of the household made all important decisions for all family members are long gone, and RFRA claims relying on that premise should be rejected.

A few other observations:

• Judge Jones parts company in several respects with a decision by Judge Richard Leon in a similar suit, also brought by ADF, on behalf of March for Life. The government has appealed Judge Leon’s decision to the DC Circuit.

• The plaintiffs in Real Alternatives relied on the discredited argument that certain contraceptives—”including all IUDs and hormonal birth control methods”—are abortifacients. The court properly rejected the plaintiffs’ invocation of certain statutes that relate specifically to abortion: “Though Plaintiffs may believe that certain FDA-approved contraceptives cause abortions, federal law has never equated emergency contraceptives with abortion.”

• The court criticized the plaintiffs’ attorneys for what it perceived to be a lack of candor. With respect to one of plaintiffs’ assertions about the history of the coverage regulations, the court said that plaintiffs made “an egregious misstatement.” As for their arguments about the reach of the Supreme Court’s decision in Hobby Lobby, “Plaintiffs patently mislead the Court in their analysis.” Ouch.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.