Death by 1,000 Cuts: The Right’s Legal Strategy to Undermine Health-Care Reform

Attorneys representing Missouri Rep. Paul Wieland argued before the U.S. Eighth Circuit Court of Appeals this week that the three-term state representative’s religious objections to contraception should allow him to exclude birth control coverage for his wife and daughters from his state-provided health insurance without jeopardizing coverage or incurring any financial penalties for not complying with the Affordable Care Act.

Wieland’s lawsuit is among the more than 100 legal challenges filed against the contraception benefit in the ACA, but is the first to argue for an individual exemption from the benefit.

While cases like Hobby Lobby and Little Sisters of the Poor have dominated the coverage of the legal challenges to the contraception benefit, Wieland’s case represents an extension of a legal strategy by health-care reform opponents that is designed to destabilize and debilitate health-care reform broadly, ACA proponents argue.

“I just can’t think of a better example of patriarchy than the man saying he wants to try and control the coverage that his wife and daughters get,” Brigitte Amiri, senior staff attorney for the American Civil Liberties Union, said in an interview with RH Reality Check.

Judith Waxman, vice president for health and reproductive rights at the National Women’s Law Center, explained in an interview with RH Reality Check that Wieland’s case undercuts the entire concept of group health insurance and the specific benefits built into the ACA to protect consumers from the outcome Wieland’s lawsuit seeks.

“The case takes this whole thing to a new level of absurdity,” Waxman said. “In the old individual market where companies had the choice to do that and sometimes they would say, ‘Well, you have a pulmonary system problem so we’ll cover you for everything other than your pulmonary system. That’s how it used to be in the olden-bad days. We got away from that by saying, ‘OK, everybody has the same basic plan, and preventative services are required, and we’re all in this together.’”

In other words, Wieland’s lawsuit effectively uses the contraception benefit as a Trojan Horse to argue for a return to the system in which insurance companies exclude some conditions from coverage.

“There are lawsuits like Halbig that try and directly put a stake through the heart of the ACA and then there are other ones that chip away at other important provisions in the act, like the cases challenging the contraception mandate,” Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, told RH Reality Check.

In Halbig, opponents to health-care reform argue that the ACA’s statutory language prevents the federal government from making subsidies available to those consumers who purchase health insurance through federal exchanges.

Conservative lawmakers who opposed health-care reform refused to set up their own state exchanges in 36 states, prompting the Obama administration to step in and provide health insurance to consumers through federal exchanges.

“The inception of the litigation strategy behind Halbig and the idea of taking these words out of context from the statute and playing ‘gotcha’ litigation is reflective of the right’s reaction to the Affordable Care Act in general, which is to try and kill it at any cost,” Wydra said. “I think given the lack of support that they are finding in the American public in their continued quest against the Affordable Care Act, they think their best hope is the conservative Roberts Court. That’s what they are betting on.”

While the right’s opposition to health-care reform is not confined simply to the law’s nondiscrimination provisions, opponents have found the most legal system success in those cases challenging the ACA’s birth control benefit.

Last summer’s Supreme Court decision in Hobby Lobby and its interim order in the Wheaton College case handed health-care reform opponents two important victories they are now looking to build upon in the federal appeals courts. Earlier this week, attorneys representing religiously affiliated nonprofit employers like the Little Sisters of the Poor told a federal appeals court that despite the Obama administration’s numerous attempts to accommodate religious objections to portions of the health-care law, they intended to press ahead with their legal challenges.

“What these plaintiffs want is a complete exemption from the requirement and so they want to be treated like the houses of worship,” Amiri said. “It’s not surprising that they don’t think the augmented accommodation doesn’t go far enough.”

In their legal briefs filed with the Tenth Circuit Court of Appeals, attorneys representing the Little Sisters of the Poor argued the administration’s attempts to provide a way for institutions that are religiously affiliated but not houses of worship to avoid providing contraception coverage for their employees and students amounted to religious discrimination because the administration is “picking and choosing” which institutions have “sufficient faith.”

But as Amiri notes, the question before the courts is not which institutions have substantial religious beliefs and which ones do not, but whether the administration’s coverage requirement and the process for opting out of that requirement unduly burdens those beliefs.

“Where the courts play a role is determining objectively whether there’s a substantial burden on those religious beliefs,” said Amiri.

“One of the real dangers of the Hobby Lobby decision is that it gives really short shrift to this question and makes it seems like it is very easy for a plaintiff to argue that there is a substantial burden on their religious beliefs because there wasn’t really much meat to the majority’s discussion of substantial burden in the Hobby Lobby decision,” said Amiri.

Indeed, in their brief to the Tenth Circuit, the Little Sisters state, “[T]he relevant question is only whether the Little Sisters sincerely believe they are forbidden from participating in the government’s system to promote and facilitate contraceptive access.”

Amiri said that to suggest all the court needs to do is accept the challengers at their word is misleading.

“Their [the challengers] arguments conflate sincerity of religious beliefs with the objective inquiry into whether there’s a substantial burden on those sincere religious beliefs,” Amiri said. “There still has to be some inquiry. It’s not like any plaintiff can just say, ‘I have a sincere religious objection to something the government is making me do,’ and that automatically means their religious beliefs are substantially burdened. It’s not a free pass just by a mere allegation of a sincere religious belief.”

But a free pass is apparently what the challengers are hoping for.

Attorneys for the Little Sisters of the Poor argued the case did not need to be returned to the lower court for a trial on the issue of whether or not the Obama administration’s latest birth control fix was sufficient and instead urged the federal appeals court to continue the preliminary injunction already in place. That would prevent the court from engaging in the very kind of objective inquiry Amiri described.

“Basically they are doing everything they can to withhold contraception coverage from their employees and it shouldn’t be permissible,” Amiri said.

With legal challenges to the federal government’s ability to subsidize insurance purchased on the federal exchanges and challenges by individuals, nonprofit employers, and for-profit employers to the ACA’s contraception benefit working their way through the federal courts, those defending the health-care law see no reason to think the challengers will quit trying to undo health-care reform anytime soon.

“We agree of course with Justice Ginsburg that the Hobby Lobby decision was going to open up the floodgates,” said Waxman, “and we are concerned that there is continuing litigation over the contraceptive requirement. But we’re also concerned about what’s coming next in terms of, ‘I don’t believe in immunizations for my employees, I don’t believe in mental health coverage for my employees, or whatever else it might be.’”