Written by Imani Gandy for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

In May of this year, Jan Brewer signed into law Arizona HB 2625, a bill that would allow employers to opt out of the policy under the Affordable Care Act ensuring that all insurance policies cover preventive health care services for women, including contraception, without a co-pay.

It’s a simple concept, really: contraception is health care. Health insurance plans offer coverage for health care. Ergo, health insurance plans should offer coverage for contraception. Ta da!

Laws like Arizona HB 2625 undercut this simple concept. According to supporters of laws like HB 2625, contraception is of the devil. And because the Catholic Church’s official position on contraception is that it is sinful, the Church seems personally offended at the notion that any employer be required by the government to exist in the same space as women who are using their hard-earned wages to pay for contraceptive and other health care services that are anathema to church doctrine.

A couple months ago, I published a piece that described what I saw as a dangerous slippery slope regarding Arizona HB 2625 (and laws like it), which permit employers to claim some sort of religious affiliation and thus excuse themselves from providing critical health-care services to women employed by them.

In that piece (and in the lively discussion that followed in the comment section), I noted that the exemptions provided by the Arizona legislation for “religiously-affiliated employers” went far beyond the exemptions provided by the Obama Administration to religious institutions, insofar as the Arizona law permits any employer to, essentially, pinky swear that its business is steeped in Jesus.

HB 2625 provides as follows:

A RELIGIOUSLY AFFILIATED EMPLOYER MAY REQUIRE THAT THE CORPORATION PROVIDE A CONTRACT WITHOUT COVERAGE FOR SPECIFIC ITEMS OR SERVICES REQUIRED UNDER SUBSECTION YOF THIS SECTION BECAUSE PROVIDING OR PAYING FOR COVERAGE OF THE SPECIFIC ITEMS OR SERVICES IS CONTRARY TO THE RELIGIOUS BELIEFS OF THE RELIGIOUSLY AFFILIATED EMPLOYER OFFERING THE PLAN. IF A RELIGIOUSLY AFFILIATED EMPLOYER OBJECTS TO PROVIDING COVERAGE FOR SPECIFIC ITEMS OR SERVICES REQUIRED UNDER SUBSECTION Y OF THIS SECTION, A WRITTEN AFFIDAVIT SHALL BE FILED WITH THE CORPORATION STATING THE OBJECTION. ON RECEIPT OF THE AFFIDAVIT, THE CORPORATION SHALL ISSUE TO THE RELIGIOUSLY AFFILIATED EMPLOYER A CONTRACT THAT EXCLUDES COVERAGE FOR SPECIFIC ITEMS OR SERVICES REQUIRED UNDER SUBSECTION Y OF THIS SECTION.

The law defines “religiously affiliated employer” as follows:

“RELIGIOUSLY AFFILIATED EMPLOYER” MEANS EITHER:
(a) AN ENTITY FOR WHICH ALL OF THE FOLLOWING APPLY:
(i) The entity primarily employs persons who share the religious tenets of the entity. (ii) The entity primarily serves persons who share the religious tenets of the entity.
(iii) The entity is a nonprofit organization as described in section 6033(a)(2)(A)(i) or (iii) of the internal revenue code of 1986, as amended.
(b) AN ENTITY WHOSE ARTICLES OF INCORPORATION CLEARLY STATE THAT IT IS A RELIGIOUSLY MOTIVATED ORGANIZATION AND WHOSE RELIGIOUS BELIEFS ARE CENTRAL TO THE ORGANIZATION’S OPERATING PRINCIPLES.

Plainly, the limitation set forth in subsection (b) is no limitation at all. Any entity can change or amend its articles of incorporation relatively easily — it doesn’t take a lot of imagination. Indeed, when I first wrote about the Arizona law, I suggested that companies would rush to make their companies more Jesus-based in order to take advantage of religious exemptions, and to avoid being forced by Big Government to provide full health insurance coverage for women.

While my concern at the time related only to the Arizona’s contraception opt-out law, it seems that my prediction of what would soon come to pass is proving correct.

On Friday, a Colorado district court judge granted a preliminary injunction in a lawsuit brought by an air conditioning company and its owners against the Obama Administration. In the lawsuit, plaintiffs*** complain that they have “a sincere conscientious religious objection to providing coverage for abortifacients, contraception, sterilization and related education and counseling,” and that a policy requiring coverage of birth control “constitutes government-imposed coercion on Plaintiffs to change or violate their sincerely held religious beliefs.”

Here are some relevant allegations from Plaintiffs’ complaint. (Pardon the extensive quote, but it’s important to read exactly what air conditioning companies and the like are claiming about the inherent Christ-like nature of their small businesses — so read it!):

28. The Newlands are practicing and believing Catholic Christians. They strive to follow Catholic ethical beliefs and religious and moral teachings throughout their lives, including in their operation of Hercules.

29. The Newlands sincerely believe that the Catholic faith does not allow them to violate Catholic religious and moral teachings in their decisions operating Hercules Industries. They believe that according to the Catholic faith their operation of Hercules must be guided by ethical social principles and Catholic religious and moral teachings, that the adherence of their business practice according to such Catholic ethics and religious and moral teachings is a genuine calling from God, that their Catholic faith prohibits them to sever their religious beliefsfrom their daily business practice, and that their Catholic faith requires them to integrate the gifts of the spiritual life, the virtues, morals, and ethical social principles of Catholic teaching into their life and work.

30. The Catholic Church teaches that abortifacient drugs, contraception and sterilization are intrinsic evils.

31. As a matter of religious faith the Newlands believe that those Catholic teachings are among the religious ethical teachings they must follow throughout their lives including in their business practice.

32. Consequently, the Newlands believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception, sterilization, and related education and counseling, as would be required by the Mandate, through their inclusion in health insurance coverage they offer at Hercules.

33. Hercules’ mission statement includes the commitment that “We will nurture and maintain the culture of a family owned business in which our employees grow financially, intellectually, emotionally and spiritually.”

34. The Newlands have, for a substantial period of time to the present, operated Hercules in promotion of Catholic ethical principles in a variety of ways including but not limited to the structuring of their health insurance plan.

35. Under the Newlands’ direction Hercules has donated hundreds of thousands of dollars to Catholic parishes, schools, evangelical efforts, and charitable causes averaging nearly$60,000 every year since 2008.

36. Since 2010 the Newlands’ have been implementing within Hercules a program created by the Spitzer Center for Ethical Leadership, by which companies build their corporate culture based on Catholic principles. Through this program, the Newlands have regularly trained their management to implement principles based on plaintiffs’ religious ethical beliefs.

In granting the preliminary injunction, the Court had to take into consideration two factors as a matter of law. One, whether or not plaintiffs were in danger of suffering irreparable harm, and two, whether or not plaintiffs were likely to succeed on the merits of their case (in other words, whether or not the ultimate conclusion of the case would be in favor of the company and its owners.)

On both points, the Court found in plaintiffs’ favor. As to the threat of irreparable harm, plaintiffs would be required to begin providing contraception in its health plan on November 1, 2012 and were therefore in danger of suffering of irreparable harm. No surprise there. (A Nebraska district court judge recently dismissed one of these contraception opt-out lawsuits, but only did so because the Plaintiff-employer was not due to adhere to the mandate until August 2013; the court found that there was no immediate threat of irreparable harm.)

The Court’s reasoning as to the second factor — whether or not plaintiffs are likely to succeed on the merits — is what is troublesome, to put it mildly.

Plaintiffs are claiming that the contraception mandate violated their rights under the First Amendment and under the Religious Freedom and Restoration Act (RFRA). Under RFRA, the legal inquiry goes something like this:

1. When “a person refuses to provide health insurance that covers contraceptives and abortifacients, is that an “exercise of religion?”

2. Does the contraception mandate “substantially burden” such exercise of religion?

3. Does the burden of such exercise of religion further a “compelling governmental interest?”

4. Is the burden of such exercise of religion the “least restrictive means” of furthering a compelling governmental interest?

The court answered questions 1 and 2 in the affirmative, and 3 and 4 in the negative.

Now, here’s where it gets tricky.

Of course, promoting women’s public health is a compelling governmental interest, and the Court noted as much. But RFRA requires an examination of the burden as it relates to the actual person being burdened (or to the corporation being burdened, as the case may be — corporations are people, my friend!). Just because the mandate burdens all similarly-situated parties doesn’t mean that it is constitutional as applied to Plaintiffs specifically. The government must demonstrate that burdening Plaintiffs furthers a compelling interest.

And this is where the problem arises: How can the government demonstrate that burdening Plaintiffs furthers a compelling interest when it exempted 190 million health plans from complying with the contraception mandate? An even more difficult question is this: If providing preventive health care to women and doing so by uniformly applying this mandate to all employers irrespective of religious background is so compelling, then why exempt so many health plans?

From a legal standpoint, the Obama Administration may have difficulty answering those questions. Certainly, the Administration’s actions make sense from a political standpoint. Given the fact that the Catholic Church has its fingers in our contraceptive pie, the Administration had to work with the Bishops or risk having the whole deal fall apart. (It seems to be falling apart anyway; the Catholic Health Association reneged on their initial agreement that the mandate as revised by the Administration was suitable.) In other words, by working with the Catholic Church in order to craft this mandate in such a way that the Catholic Church would not bitch about it, the Obama Administration may have shot itself in the foot, because guess what? The Catholic Church is bitching about it.

Ultimately, pointing out that the 190 million exempted plans undercuts the notion that the mandate is necessary and must be uniformly applied is a good tactic on the part of contraception mandate opponents. It forms the basis of a solid legal argument, I think. The only counter-argument that currently comes to mind is that the compromises that the Obama Administration made with religious organizations, and the exemptions provided to them were necessary as a practical matter in order to pass the legislation in the first place. In other words, the interest being served by this legislation is so compelling that undercutting it slightly in order to promulgate it was warranted.

Right.

Doesn’t sound like as solid of an argument, does it?

As to the whether or not the contraception mandate is the “least restrictive” means of furthering the “compelling governmental interest”  – as in “ensuring that women have access to preventive care including contraception” — the Court said it wasn’t.

The Court found that less restrictive means existed; for example, government-provided contraception would ensure that women have access to contraception and would not substantially burden Plaintiffs’ exercise of religion. (At least until the Catholic Church decides that merely being governed by an institution ensuring access for sluts to contraception without a co-pay is an “intrinsic evil.”)

Obviously, the political landscape is such that any sort of socialized women’s healthcare is a pipe dream. Wingnuts are already losing their collective shit because they think women are currently demanding that the government provide free contraception: “Why should I have to pay for you to have sex!” (Of course, women simply want coverage for contraception in health plans that they pay into but don’t try to argue against conservafacts — you’ll just go mad.)

Imagine the outcry if government-provided birth control became an Obama Administration policy goal because contraception access was stymied by religious zealots whining about freedom of religion for themselves (and their corporations.)  “Obama is a pimp!” I can hear it already. 

These are the sorts of legal arguments that we are going to be seeing. Corporations will claim that they are people and therefore entitled to the same First Amendment rights to freedom of religion that actual living breathing people do. Corporations will claim that they are “person[s]” to which RFRA applies. Meanwhile actual persons are going to continue to be stripped of their rights as persons.

*** Notably, the preliminary injunction was granted to plaintiffs. Plaintiffs in the case are the air conditioning company and the owners of that company. Whether or not a corporation’s free exercise of religion is now a right that must be protected is a subject for another post, the mere thought of which causes me great distress.

[You can read my mark-up of the Court's order here on Scribd]