NCPA - National Center for Policy Analysis

Contraceptive Mandate Could Face Tough Sledding in Supreme Court

February 1, 2012

The Supreme Court and the Obama administration, already headed for a face-off in March over the constitutionality of the health care 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, says the Los Angeles Times.

  • The dispute stems from one of the more popular parts of the new health care 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.  In a 9-0 defeat for the administration, the justices said the First Amendment gives "special solicitude to the rights of religious organizations" in decisions about their employees.  Lawyers challenging the rule say the dispute is not about women using contraception, but about forcing the Catholic Church to pay for it.

  • 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.

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.

Source: David G. Savage, "Contraceptive Mandate Could Face Tough Sledding in Supreme Court," Los Angeles Times, January 30, 2012.

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