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.”
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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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