The national pro-life organization March for Life has won an important federal court case against the Obamacare “contraception mandate.”
The “contraception mandate” stems from the Obamacare health care law and regulations issued by the Obama administration. The contraception mandate includes drugs that can cause abortion by preventing the implantation of a fertilized egg.
Earlier this week a federal district court judge ruled that March for Life should be free to offer employee health insurance coverage that does not include drugs and devices that can cause abortions.
According to a statement issued by March for Life, “The order is the first one to be granted in favor of an organization opposed to the mandate for pro-life reasons based on science and moral convictions rather than religion.”
The Charlotte Lozier Institute (CLI) has previously weighed in on the contraceptive mandate litigation, in a brief submitted to the U.S. Supreme Court in the Hobby Lobby case decided in 2014. CLI has also published a paper by Associate Scholar Susan Wills, J.D., LL.M., explaining that emergency contraceptives can cause early abortions.
March for Life brought this case because, as the court explains, “March for Life will not support abortion in any way, and, as such, opposes coverage in its health insurance plan for contraceptive methods it deems ‘abortifacients.’” Although the government provides an exemption from the mandate for certain religious employers, as the court explains that exemption extends narrowly only to “‘churches, their integrated auxiliaries, and conventions or associations of churches as well as to the exclusively religious activities of any religious order.’”
That narrow scope of protection left March for Life in the cold as it “is not religious, much less a house of worship or integrated auxiliary.” Fortunately, however, the court ruled that it was unlawful for the government not to extend protection to March for Life.
The court explains that the government had “reasoned that a narrow religious employer exemption was necessary to accomplish two objectives. First, it addressed [the government’s] desire to ‘respect the religious interests of houses of worship and their integrated auxiliaries.’ Second, it accommodated these religious interests without undermining ‘the governmental interests furthered by the contraceptive coverage requirement,’ i.e.— the provision of contraceptive coverage to women who ‘want it.’ As to the latter objective,” the court continues, “[the government] opined that the Mandate’s central purpose would remain undisturbed because employees of religious organizations would be less likely than employees of secular organizations to want contraceptive coverage in the first instance.”
“Specifically,” the court continues, quoting the government, “‘[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan’” (emphasis added by the court).
In the view of the court, the same reasoning applies to secular non-profit groups, such as March for Life. The court explains that “[a]nti-abortion advocacy is March for Life’s sole and central tenet. It is an entity founded exclusively on pro-life principles, and its governing ethos—indeed its corporate dogma—is staunchly anti-abortifacient.” The court continues, “This philosophy is shared, moreover, by March for Life’s employees, who ‘not only agree with its anti-abortifacient views, but [who] work there precisely to advocate those views.’”
In the words of the court, “On the spectrum of ‘likelihood’ that undergirds [the government’s] policy decisions, [March] for Life’s employees are, to put it mildly, ‘unlikely’ to use contraceptives. In this respect, March for Life and exempted religious organizations are not just ‘similarly situated,’ they are identically situated. Their employees share, as a function of their belief system, the ‘unique’ tenets of an employment relationship that [the government] seeks to protect.”
The court then writes, “It is difficult to imagine a more textbook example of the trait [the government] purports to accommodate. And yet, March for Life has been excised from the fold because it is not ‘religious.’”
In the words of the court, “This is nothing short of regulatory favoritism.”
March for Life, the court explains, “is an avowedly pro-life organization whose employees share in, and advocate for, a particular moral philosophy. [The government] has chosen, however, to accommodate this moral philosophy only when it is overtly tied to religious values. [The government] provides no principled basis, other than the semantics of religious tolerance, for its distinction.”
The court continues, “If the purpose of the religious employer exemption is, as [the government] states, to respect the anti-abortifacient tenets of an employment relationship, then it makes no rational sense—indeed, no sense whatsoever—to deny March [for] Life that same respect.”
According to the court, “By singling out a specific trait for accommodation, and then excising from its protection an organization with that precise trait, it sweeps in arbitrary and irrational strokes that simply cannot be countenanced, even under the most deferential of lenses. As such, the Mandate violates the equal protection clause of the Fifth Amendment and must be struck down as unconstitutional.”
The court also ruled in favor of claims made by individual employees of March for Life under the federal Religious Freedom Restoration Act.
The March for Life case is a great win for common sense, freedom, and sound policy. The government has no business forcing pro-life organizations to include abortifacients in employee health care plans; the fact that the government would even try to do so is an outrage. An individual or organization does not have to be religious to understand the immorality of ending innocent human life. When it comes to not being forced to support or facilitate abortion, it shouldn’t matter whether pro-life commitments are rooted in religious convictions or moral reasoning or some combination of the two.
The March for Life win provides occasion to congratulate and thank March for Life, and its named employee plaintiffs, for taking the government to court. Congratulations extend as well to the attorneys from Alliance Defending Freedom who represented March for Life in court.
After a win like this one, it’s good to celebrate and renew a sense of optimism and hope that the freedoms we have long cherished in this country will endure. March for Life and the Alliance Defending Freedom attorneys deserve gratitude and congratulations.
The fact remains, however, that March for Life should never have had to bring this lawsuit in the first place. We’re glad for the courts when they protect our freedoms from government overreach. But the only reason plaintiffs like March for Life are in court is because the government overreached in the first place.
The contraception mandate, including the inadequate exemptions for conscientious objectors, is first and foremost a failure of policy. And policy is a matter of choice. As a general matter, courts are obliged to apply the laws as written. Policymakers, in contrast, get to choose what laws to make. They can make good laws. They can make bad laws. Or they can choose not to make a law in the first place.
The contraception mandate, and the inadequate conscience protections that have forced far too many organizations into litigation, is a bad law that didn’t have to be.
And it still doesn’t. Individuals and institutions in this country who value freedom of religious and moral conscience must always remember that, as much as we welcome favorable court rulings, the first—and in cases with bad outcomes, the last—line of defense remains in political action.
Thomas M. Messner, J.D., is Senior Legal Fellow in the Charlotte Lozier Institute.