As Tricia noted earlier, seven states filed suit this week, challenging the Obama administration's policy on contraception coverage. Led by Nebraska Attorney General Jon Bruning (R), the seven Republican attorneys general are arguing that the policy -- which exempts churches and will not force religiously-affiliated employers to cover birth-control costs directly -- "discards" and "violates" the First Amendment.
What's more, this isn't the only case. On Tuesday, Ave Maria University, a controversial Catholic law school in Florida, filed its own federal lawsuit, alleging that the Obama administration is "bullying" religious institutions.
Does the litigation have a credible shot? Sahil Kapur takes a closer look and concludes, "[P]robably not."
"I don't think they have much of a case under current precedent," said Jessica Arons of the Center For American Progress. "Courts in New York and California have already upheld the exemption that was initially adopted by the Administration. And I think the further accommodation that the Administration has offered shows exceeding sensitivity to claims of religious liberty that are not required under the law."
Adam Winkler, a constitutional law professor at UCLA, was more blunt. "This lawsuit is inspired by politics and nothing more," he told TPM. "Even under the previously announced rule there was little chance of success."
One avenue for a challenge is on First Amendment grounds. But the Supreme Court has emphatically said religious entities may not be exempted from generally applicable laws, with some exceptions that don't apply to this issue.
Sahil added that the more credible legal avenue is challenging the contraception case under the Religious Freedom Restoration Act (RFRA), signed by President Clinton in 1993, but UCLA's Winkler said the compromise the White House accepted on the policy makes this argument "nonsense."
In all likelihood, the lawsuits are intended to make the right feel better, and perhaps give the relevant players a boost in fundraising. For that matter, the courts are occasionally unpredictable, and these conservative lawyers may feel like it's worth rolling the dice.
But if precedent and common sense win out, these lawsuits more closely resemble publicity stunts than legitimate legal challenges.
As for the bigger picture, the cases themselves reinforce a larger progressive argument: the right isn't just fighting against birth-control access, they're even pushing this effort into the courts.
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They are wasting money and they don't care as long what they get their way. Fascism is live and will in the GOP.
the cases brought by the states, rather than religious-affiliated institutions, are particularly suspect. those cases should not get past an immediate motion to dismiss on jurisdictional grounds: the states have no standing to bring a challenge to a federal law directed not at the states but at private entities.
"...rather than religious-affiliated institutions.."
And therein is the salient point - these are not "religious institutions" they are affiliated with them so where is the issue?!? There isn't one, and they should all be thrown out of court!! This is yet another attack on women to "put them in their place" - barefoot & pregnant!! I suppose that this is what happens when "white men/children" feel emasculated and out of control!!
I seem to recall some people on the right making an issue of frivolous law suits. I never was terribly concerned about such things because I always thought efforts to restrict lawsuits were more likely to unintentionally prevent valid suits, but if I cared about such things, I think this would fall into the category of frivolous.
I never thought corporations were people either but...
Did the Supreme Court's Hosanna-Tabor decision in January encourage the Catholic Church to further test the bounds of religious liberty? I think it did and the furor against the ruling on contraception in health insurance is the first step toward this.
This wouldn't be an issue with single payer or a public option.
They want a single prayer system.
With respect, I remember experts saying that the U.S. Supreme Court would not take Bush v. Gore, much less interfere with decisions made by the Florida courts. I also remember experts stating that cases against the health insurance mandate were unlikely to go anywhere.
Unfortunately, despite rhetoric to the contrary, conservative justices have shown that complaints against activist judges should only apply to the other guys. As I recall, a Florida judge even referenced complaints by the Tea Party in his decision to overturn the health insurance mandate.
The bottom line is that many Republican appointees to the bench have shown that they don't respect precedent, the law, or judicial constraint if doing so favors Dems over Republicans. These are activist judges, acting on behalf of the Republican Party. So among the many reasons to work to re-elect President Obama, his ability to appoint federal judges is among the most important.
https://donate.barackobama.com/page/contribute/o2012-donate-today?source=primary-nav
Knowing full well that big pharm owns a percentage of the republican party, we are left to ponder how they will benefit from this. I have a few ideas but let's wait and see.
Good thing they are reaping huge profits from medicare thanks to the GOP.
Let's get the men and the amen out of this, then we'll talk.
What bothers me is that there is no call for a million women march to protest these attacks on women's bodies. Women in this country deserve whatever they get, since they are too lazy to fight for their rights.
Good job of playing a republican. That was what you were doing right?
http://www.now.org/issues/abortion/
http://www.momsrising.org/
http://www.equalrights.org/
http://www.feminist.org/welcome/mandp.asp
http://www.lwv.org/
http://www.ywtf.org/ywtf/home.aspx
Thanks, Eileen. I'm going to all those sites. I have been thinking that a million woman march combined with a Lysistrata movement would be a good thing right now.
How long has this contraception vs. freedom of religion manufactured controversy been going on? I've been sitting on the sidelines and reluctant to wade in, but I really can't take it anymore. So, for those who were absent from high school that day, here's a brief civics refresher lesson.
We are a nation of laws, rules that we all must follow. Inherent in our system is the concept of majority rule and protection of minority rights. But there is a limit to minority rights, indeed to all rights. Freedom of speech? You can't slander someone, nor falsely yell “Fire!” in a crowded theater. Freedom of religion? It's safe to say we all think human sacrifice is a no-no, even if you're a Mayan.
But there's a less sensational and more relevant example. The question before us is, is it OK to make, by force of law, a religious institution (OK, hospitals aren't religious institutions, but let's pretend they are) pay for something that is against its stated deeply held religious beliefs? If not, and arguably even more applicable, is it OK to make an individual pay for something that is against his/her stated deeply held religious beliefs?
The one word answer is: Quakers. Quakers are vehemently anti-war. Pacifism is one of their most deeply-held religious doctrines. Should we make Quakers, by force of law, pay taxes, some of which pay for wars that are against their stated deeply held religious beliefs? The answer, courts have repeatedly held, is YES. See here.
Individual Quakers can be forced to pay, but a huge bureaucracy of CEO Pope, board of director cardinals, VP archbishops, bishops etc., which owns billions and billions of dollars worth of real estate, jewels and works of art, as well as hospitals, and can easily afford it, cannot.
We all have to follow laws, some of which we may not like. Try not paying taxes because of your religious beliefs and see what happens. Of course, now I expect all anti-war Republicans (raise your hands!) to come out in favor of exempting Quakers from paying for something that is against their stated deeply held religious beliefs.
So: “It's not about contraception, it's about freedom of religion?” No matter how many times it's said, it's a bogus argument, and JUST NOT TRUE.
I know, I know, there I go again, arguing for logic and consistency instead of using name-calling, distortions, and unprovable beliefs. Sorry.
You mean Citizens of Heaven have to pay taxes, too!!???!!!???
What a bizarre straw the GOP is clutching at here.
They seem to believe that Americans believe that if they just get those women back under men's thumbs all would again be right with the world.
I don't think so, but it is very clear that in their little back rooms, their covens or cabals or whatever, Republicans have absolutely convinced themselves that this is the case; that men secretly loathe women -- much as when as the GOP, in 2008, absolutely counted on whites secretly hating blacks in the presidential race....(they counted on the Bradley effect which never materialized).
If this country had not reduced social science to being a handmaiden of commerce, tracking only consumer's wishes, then the GOP might have found some sociologists or anthropologists who were able to tell them what was actually happening to people and to society. Instead, they preferred to just make it all up, and then stick to their phantasms.
There are consequences for well-meaning behaviors and major consequences for mean-spirited behavior. If enough people wise up and vote logically, perhaps the worst consequences of the GOP aims will be that they lose their positions of power.
I don't trust the 5 SCOTUS cons to follow precedent. They hate women as much as Repube politicians do.