A federal appeals court this week decided to allow a Missouri lawmaker's challenge to the Affordable Care Act's contraception mandate to move forward—a decision that could influence who brings such lawsuits, some say.
Unlike a number of other cases currently challenging the ACA's mandate to provide contraceptive coverage on religious grounds, this case involves a challenge brought by an individual family, not a business or religious not-for-profit.
A three-judge panel of the 8th U.S. Circuit Court of Appeals ruled Monday that Republican state lawmaker Paul Joseph Wieland and his wife Teresa Jane Wieland have standing to sue over the requirement, reversing a lower court that said they didn't. The Wielands argue that the ACA's requirement that they provide health coverage that includes contraception to their three daughters conflicts with their Catholic faith.
The Wieland's lawsuit claims that their religious freedom should be protected just as much as that of certain employers. Last year, the U.S. Supreme Court ruled in the Hobby Lobby case that closely held companies should not have to directly provide contraceptive coverage to their employees if that goes against the owners' religious beliefs.
“As in the employer cases, the ACA is not just imposing on the Wielands' daughters objectionable coverage for contraception and abortifacients; it is also forcing Paul and Teresa Wieland themselves to facilitate and participate in the provision of such religiously abhorrent coverage to their children,” according to court documents.
A U.S. District judge dismissed the case, saying the Wielands didn't have standing to sue, but the circuit panel reversed that decision Monday and sent the case back to the District Court for further proceedings.
“I think we have a very good chance of prevailing,” said Tom Brejcha, president and chief counsel of the Thomas More Society, a conservative not-for-profit law firm representing the Wielands. “If they have a right to opt out, I think that would be a blow to the HHS mandate. People would be able to opt out as they always could before the Obamacare law went into effect with that mandate.”
He also said it could mean individuals and families may now be able to sue over the mandate if they have religious objections to it.
But Leila Abolfazli, senior counsel for the National Women's Law Center's health reproductive rights team, said having an individual family sue over the mandate is just another tactic by those seeking to undermine the ACA's contraceptive provisions.
“These attacks may continue, and it really (speaks) to how far people will go to attack that federal benefit for women, but that benefit is here to stay,” Abolfazli said.
She also wondered about the merits of the case, saying if the Wielands are allowed to opt out of contraceptive coverage because they don't agree with it, that could start the country down a slippery slope. She questioned, in that case, what might stop people from opting out of other types of coverage they don't like or need, such as maternity or smoking cessation benefits.
Douglas Laycock, a University of Virginia law professor, said it's important to note that the circuit court's decision Monday doesn't hint at what the court thinks about the merits of the case.
But he said it may not be as easy for the Wielands to make their case as it was for Hobby Lobby, because it could strike at the idea of “community rating,” a rule that prevents insurers from charging different premiums within a geographic area based on certain factors.
Also, if forgoing contraceptive coverage resulted in lower premiums, people might try to falsely claim the religious exemption, Laycock said. If it resulted in higher premiums, plaintiffs might complain, even if they win, about having to pay those higher costs.
“It's hard to predict how this case will go,” Laycock wrote in an e-mail, “but it's clearly another round of trouble.”
Brejcha noted that the case could proceed in District Court, the government could seek a rehearing at the circuit court or the government could even appeal to the U.S. Supreme Court.
A number of different cases involving the contraception mandate have already been appealed to the U.S. Supreme Court.
In those separate cases, religious not-for-profits are challenging government-designed workarounds to the contraceptive mandate. The government argues that the groups must notify insurers of their intention not to provide birth control to employees or face fines under the ACA. The religious not-for-profits argue that taking any action to help their employees get contraceptive coverage violates their beliefs.
