You know all those lawsuits now pending around the country charging that the Obama administration's rule requiring most health insurance plans to offer no-cost contraception is a violation of religious freedom?
Well, a whole bunch of supporters of the rule are chiming in now to say that argument has no legal merit.
The dozen new suits, representing some 43 Catholic dioceses, universities and charities "have made a splash by virtue of their number, but when you take a moment to actually look at them, there's nothing to see," Sarah Lipton-Lubet, policy counsel for the American Civil Liberties Union, wrote in a blog post. "The rule is constitutional, it violates no federal law, and it's incredibly important for women."
Lipton-Lubet is talking about the rules issued in January (and amended in February to address the religious backlash) that require prescription contraception and sterilization services to be available without additional copays as part of most health insurance packages.
While those filing the lawsuits charge that offering the coverage (or even being forced to facilitate it) in violation of their religious belief runs afoul of the First Amendment's guarantee of freedom of religion, Lipton-Lubet points out that the Supreme Court has already weighed in on the question.
"The Free Exercise Clause does not require any exemptions from a neutral law of general applicability. As the Supreme Court held two decades ago, in an opinion authored by Justice Antonin Scalia, to do otherwise would be to create a system "in which each conscience is a law unto itself." Translation? If it applies equally and doesn't target any faith, it's not a First Amendment violation."
(Backers of the church challenges, however, point to a more recent case, a unanimous ruling this past January, where the justices said religious organizations should have broader hiring and firing power than other businesses.)
But even setting the Supreme Court aside, pointed out Ian Milhiser of the Center for American Progress, more than half the states already require contraceptive coverage. And the issue has already been litigated at that level by the Catholic church — and the challengers lost.
In 1999, in California, Milhiser wrote, "five of the court's six Republican justices held that, even if the law were examined under the strictest level of constitutional scrutiny, California's contraceptive access law is constitutional."
And even if the issues hadn't been litigated before, the current cases are premature, says Nancy Northup of the Center for Reproductive Rights. That's because the work on the regulations remains ongoing.
"This is the most cynical kind of political theater and nothing more," she said in a statement. "Rather than working constructively with the Administration and allowing the rulemaking process to reach a resolution, these groups have chosen to grab headlines with a political stunt that will only burden the courts with untimely claims."
But even though most religious-based organizations will have an additional year – until August 1, 2013 – to come into compliance with the new requirements, some are already taking action.
The 2,800 student Franciscan University of Steubenville in Ohio, for example, announced earlier this month that it would stop offering health insurance coverage for students this fall rather than comply with the mandate.