More than a quarter of the nation’s state attorneys general signed a letter to Kathleen Sebelius, U.S. Secretary of Health and Human Services, requesting broader religious exemptions to the contraception mandate she has interpreted as being in the Affordable Care Act.
“We’re going to do everything we can under the rule of law to challenge this constitutional infringement, and I stand side-by-side with the other state AGs who believe in the validity of our constitutional principles,” said Alan Wilson, attorney general for South Carolina, one of 13 attorneys general who signed the March 26 letter.
The latest accommodation, which the letter calls “a shell game,” requires insurance companies to provide free contraceptive coverage—including abortifacients—to the insured, even if the employer objects for religious reasons. A limited number of employers—churches, some nonprofits—are exempt.
Signing the letter were attorneys general Luther Strange of Alabama, John W. Suthers of Colorado, Pam Bondi of Florida, Samuel S. Olens of Georgia, Lawrence G. Wasden of Idaho, Derek Schmidt of Kansas, Jon C. Bruning of Nebraska, Mike DeWine of Ohio, Scott Pruitt of Oklahoma, Alan Wilson of South Carolina, Greg Abbott of Texas, Patrick Morrisey of West Virginia, and Timothy C. Fox of Montana.
No Free Lunches
The attorneys general argue in the letter the “accounting gimmick” still does not allow employers to exercise their religion freely.
“We all know that insurance companies do not provide anything for free; the employers are still going to be paying for these services through increased premiums or otherwise even if the insurance company technically covers those products through a separate ‘free’ policy,” the letter states.
It’s difficult to see how self-insured groups would manage the coverage, said Lori Windham, senior counsel for the Becket Fund for Religious Liberty.
“You’re still going to have to find money that doesn’t come from the insured to pay for these, and the convoluted scheme that’s been proposed doesn’t seem at all guaranteed to work,” Windham said.
“Anyone with any practical experience in the world will tell you there’s no free lunches,” Wilson said.
Making Exemption Distinctions
The letter also argues the government does not show a compelling reason to distinguish between those nonprofits that are exempt and those that are not.
“Allowing an exception for one group ‘fatally undermines’ the argument that the government has a compelling interest in denying others the same or similar exception,” the letter states.
The letter also addresses the issue of for-profit employers who object on religious grounds, who currently receive no accommodation. If some nonprofits can have an exemption, it’s hard to make the case for-profits can’t, the letter states.
Oklahoma attorney general Scott Pruitt cites Citizens United v. Federal Election Commission, where the Supreme Court decided the First Amendment right to free speech applies not only to individuals but also to corporations.
If corporations possess the right to free speech in the First Amendment, Pruitt said, “I don’t think it’s too far an extension at all to say they can possess the free exercise [of religion] right in the First Amendment.”
Windham says the struggle over the contraceptive mandate is “one of the most important issues facing our nation today” and one of the most important legal battles the Becket Fund has been involved in.
“It’s going to ask the question of what the government’s powers are and how much it can restrict religious freedom,” Windham said. “Even people who don’t share the same beliefs … should be concerned, because this is going to decide where the lines are drawn.”
The encroachment on people’s rights is unnerving, she said.
“What our government has been arguing is that when you begin to serve the public, if you’re a religious institution or if you go into business, you’re going to give up some of your religious liberty, and that’s a scary argument to make,” she said.
The Becket Fund attorneys were glad to see the letter from the attorneys general, Windham said.
‘Last Line of Defense’
According to Mike DeWine, attorney general for Ohio, the effort is one of his top priorities.
“It’s a very serious matter, to compel present employers to violate their deeply held religious beliefs,” said DeWine.
Attorneys general have become more vocal during the Obama administration, Wilson said, calling AGs the “last line of defense from [national government overreach].”
“It’s very fundamental. It isn’t complicated,” he said. “The federal government looks to every opportunity to centralize control in Washington, DC, and they do it under the guise of well-meaning intentions. The problem is it’s eroding the fabric of our republic, so we’re adamantly against this philosophy where you’re not going to respect people’s constitutional rights.”
Wilson views the clash as being over the very nature of government.
“I believe that organisms, whether it’s an amoeba or it’s the federal government, they grow. An organism will grow until something stops it. Water will flow until it hits a dam. The federal government will never stop growing itself. It will never stop absorbing and filling vacuums,” Wilson said. “That is its nature, to feed itself. It consumes principles long since forgotten by our society that states themselves are their own sovereign, that the people that make up the states are themselves sovereign.”
Pruitt agrees, saying HHS has still not recognized citizens’ concerns.
“It’s the government saying, ‘You shall do something, and if it’s inconsistent with your religious beliefs, we’re going to force you to do it anyway,'” he said.
Letter from State Attorneys General: “A Communication from the Chief Legal Officers of the Following States.”