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National Journal, New York Times, Others Analyze Supreme Court Contraceptive Case

National Journal, New York Times, Others Analyze Supreme Court Contraceptive Case

December 2, 2013 — Over the Thanksgiving break, several news outlets published analyses and opinion pieces about the Supreme Court's decision to hear challenges to the federal contraceptive coverage rules. Summaries appear below.

News Articles and Analyses

~ National Journal: There is "almost no precedent" for the Supreme Court's review of private corporations' challenges to the federal contraceptive coverage rules, the Journal reports. According to the Journal, the Supreme Court last ruled on contraception in 1977 -- when it struck down a New York law prohibiting the sale of contraceptives to minors -- and reproductive-rights cases since then have mostly focused on state-level abortion restrictions. The current case also differs from prior challenges because it will decide whether a private entity has a right to restrict individuals' access to contraception, rather than whether the state can legislate such restrictions. Brigitte Amiri, a senior staff attorney at the American Civil Liberties Union's Reproductive Freedom Project, said that while the high court likely will limit its decision to the specific companies that filed suit, the ruling will have implications for the millions of women who are benefitting from expanded access to contraception because of the federal policy (Ritger, National Journal, 11/29).

~ Politico: The Supreme Court ultimately must decide whether a "for-profit company engaged in commercial activities" can declare religious beliefs, according to Politico. The article summarizes the main issues at stake in the case, including whether "religious rights 'pass through' from the owners to the business and how it operates." Women's health groups said a ruling in favor of the companies might "be the start of a slippery slope" that could lead to employers being able to "deny coverage of other medical treatments, such as vaccines or blood transfusions," Politico reports. Louise Melling, deputy legal director at ACLU, said the reach of decision will depend on how broadly the ruling is worded (Haberkorn, Politico, 12/2).

~ Wall Street Journal's "Washington Wire": The Supreme Court previously ruled that "[w]hile the First Amendment protects religious beliefs, it provides no exemptions from laws that apply generally, regardless of anyone's sincere objections," the Journal reports. However, the plaintiffs in the current case also cite the Religious Freedom Restoration Act (PL 103-141), which states that the government cannot substantially burden religious exercise without a compelling interest. According to the Journal, RFRA "authorizes challenges to any federal law unless Congress explicitly rules them out -- which it did not do in adopting the Affordable Care Act [PL 111-148]." Further, because the plaintiffs are challenging a federal law, RFRA gives them a "new avenue that wasn't available when some religious-oriented employers challenged state contraceptive mandates," the Journal reports (Bravin, "Washington Wire," Wall Street Journal, 11/27).

~ Washington Post's "Wonkblog": "Wonkblog" recaps how the challenges to the federal contraceptive coverage rules reached the Supreme Court and explains what happens now that the justices have agreed to review the issue. The court likely will schedule oral arguments for the spring and issue a decision in early summer. Unlike last year's Supreme Court case on the ACA, a decision against the government "would not take the [ACA] down with it," according "Wonkblog." In addition, most private companies do not object to contraceptive coverage and are already offering it, "Wonkblog" notes (Kliff, "Wonkblog," Washington Post, 11/27).

Opinion Pieces

~ Linda Greenhouse, New York Times: Framing the legal challenges to the contraceptive coverage rules "as a debate about the rights of corporations ... misses the point," writes op-ed columnist Greenhouse, a former Supreme Court reporter for the Times who teaches at Yale Law School. She argues that the legal challenges represent "the culture war redux -- a war not on religion or on women but on modernity." Greenhouse writes that because expanding access to contraceptive coverage will "reduce the rate of unintended pregnancy and abortion," the objection to the mandate "has to be not to the mandate's actual impact but to its expressive nature, its implicit endorsement of a value system that says it's perfectly O.K. to have sex without the goal of making a baby." She adds that the Obama administration has rightly framed "this aspect of the [ACA] as the implementation of evidence-based medicine," but it is only able to meet the "moral claims of its opponents in technocratic mode" because it has failed to "present universal health care as a moral issue." She concludes, "If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation," but the cultural "issues will be there nonetheless, and that's what makes these cases so compelling" (Greenhouse, New York Times, 11/27).

~ Elizabeth Wydra, CNN: If the Supreme Court justices "follow more than 200 years of constitutional law and history on what it means to enjoy the free exercise of religion in America, the court should yet again hand a victory" to the ACA, writes Wydra, chief counsel for the Constitutional Accountability Center. Wydra writes the Constitution does not extend the religious protections afforded an individual to a company because a company "lacks the basic human capacities -- reason, dignity and conscience -- at the core of the right to free exercise of religion." She adds that while the "devout individual business owners behind the corporations in these challenges have their own personal rights to exercise their religion," those rights "have nothing to do" with the ACA because the law assigns the requirements to the company, not the owner. "A business owner simply does not have the right to move back and forth freely between individual and corporate status to obtain all the advantages and avoid any of the disadvantages of the respective forms," Wydra argues (Wydra, CNN, 11/26).