WOMENS' RIGHTS OPPONENTS Eye Court Support!

[rst0]

If this issue reaches the Sub-preme Court, the best we birth control
advocates can hope for:


* Roberts has another of his seizures.

* Thomas's eyes permanently cross upon spying a young scantily clad
white female.

* Scalia has an unfortunate hunting accident with friend Dick Cheney.

* Alito is "called home" to be with his heavenly father.

* Kennedy's ancient colon collapses.


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"New front in birth control rule battle: the courts"


By N.C. Aizenman
March 7, 2012



REPUBLICANS and religious organizations fighting President Obama’s new
birth-control-coverage rule are focusing their hopes on what could
prove the next front in the battle: the courts.

Since November, at least eight lawsuits have been filed in federal
district courts across the country challenging the constitutionality
of the rule, which requires employers, including church-affiliated
organizations that object to contraception on religious grounds, to
cover birth control in workers’ health plans with no out-of-pocket
charges. (Groups that are exclusively religious, such as churches, are
exempt).

The plaintiffs include religiously affiliated schools, colleges,
universities and charities, as well as a Catholic television network,
two private citizens and the Republican attorneys general of six
states.

Some Republicans predict the matter will ultimately be decided by the
nation’s highest court. Speaking moments after the Senate voted down
his attempt to expand the rule’s conscience exemption last Thursday,
Sen. Roy Blunt (R-Mo.) pointed in the direction of the Supreme Court
as he declared: “This issue is not over. . . . These faith-based
institutions will not be willing to change their character. . . . And
so this is a debate that might be settled at that building across the
street.”

Of course, the fight could be rendered unnecessary if the Supreme
Court chooses to invalidate the entire 2010 health-care law in
another, otherwise unrelated, case it has agreed to consider this
term. It is that law that gave the administration authority to issue
the birth-control rule.

In the meantime, though, the plaintiffs will argue, among other
claims, that the rule, which takes effect Aug. 1, interferes with
their First Amendment right to free exercise of religion by
effectively compelling them to provide a form of coverage that
conflicts with their beliefs.

Overcoming precedent

To win that argument, they will need to clear a major legal hurdle: A
landmark 1990 decision in a case called Employment Division v. Smith,
in which the Supreme Court found that if a law is “neutral and
generally applicable” — meaning that it is not specifically targeted
against any religious group — individuals must comply with it even
when doing so imposes a burden on their free exercise of religion.

Writing for the majority in that case, Justice Antonin Scalia — a
conservative justice known for his strong identification with the
Catholic Church — found that to allow otherwise “would be courting
anarchy” by making “the professed doctrines of religious belief
superior to the law of the land and in effect to permit every citizen
to become a law unto himself.”

In the last decade, the highest state courts of both New York and
California cited the Smith decision in blocking First Amendment
challenges to state contraceptive-coverage laws virtually identical to
the federal rule.

In both instances, the state courts found that their state’s laws met
the “neutral and generally applicable” standard set out in Smith. And
in both cases, the U.S. Supreme Court declined to hear an appeal of
the lower court’s decision.

The plaintiffs in the suits now pending over the federal rule contend
it is different because it offers exemptions to all sorts of other
groups — including small employers and “grandfathered” health plans
that were in existence before the health-care law was adopted.

“This indicates that the law is not generally applicable,” said Hannah
Smith, senior counsel at the Becket Fund for Religious Liberty, a
public-interest law firm that is representing employers in four of the
legal challenges.

Brigitte Amiri, an attorney with the American Civil Liberties Union’s
Reproductive Freedom Project, questions that logic. Most of the
exemptions amount to ways of phasing in the rule over time — for
instance, the assumption is that most grandfathered plans will
eventually lose that status, she noted.

“These exemptions don’t signal that a religion is being targeted.
They’re not exemptions that have to do with substance, they’re
logistical,” she said.

Using congressional law

In addition to their constitutional challenges, the plaintiffs will
try to convince judges that the federal rule violates a 1993 law
adopted by Congress in response to the Supreme Court’s Smith decision.

The Religious Freedom Restoration Act signed into law by President
Bill Clinton, essentially replaces the “neutral and generally
applicable” standard set by Smith with one that is far more stringent.
It states that even a generally applicable federal law cannot
“substantially burden” a person’s exercise of religion unless the law
furthers a “compelling government interest” and does so by the “least
restrictive means.”

The plaintiffs argue that because the vast majority of health plans in
America already offer contraceptive coverage, the government’s aim to
make that coverage virtually universal is not compelling. And they
contend the administration could achieve its goal through other means
— for example by having the government directly provide contraceptives
to women who work for religious organizations that don’t offer it.

Here again, the ACLU’s Amiri predicts a tough fight, because the
administration has already announced that it will craft accommodations
for religiously affiliated employers.

These will include an arrangement in which an employer can refuse to
include birth control in its plan and, instead, the insurance company
issuing the plan will be required to provide contraception coverage
directly to workers without charging an additional premium.
Administration officials say they are also working on an accommodation
for employers that self-insure. And they will allow religious
employers to opt out of the birth-control rule, set to take effect
Aug. 1, for one year, to ensure there is sufficient time to finalize
the accommodations.

The Department of Justice has already filed motions to dismiss two of
the cases on the grounds that the government is still developing the
rule.

“The administration’s announced plan — to work with religious
organizations to address their concerns while still ensuring that
women have access to preventive services — removes any real threat of
harm from the regulation,” a department spokesperson said.

http://www.washingtonpost.com/national/health-science/new-front-in-birth-control-rule-battle-the-courts/2012/03/06/gIQAokQqxR_story.html#weighIn

[P.T. Barnum]

“Abortion foes never want

To admit the fact they won’t confront:

Those unviable tissues that they treasure

Are not babies by any measure.”


-- Margaret Sanger