Another day, another dispatch from the national variety of litigation over the Affordable Care Act’s contraceptive coverage requirement. Last week a federal district court in Iowa granted a preliminary injunction to two “religiously-oriented colleges,” Dordt College and Cornerstone University (both Christian-affiliated), to allow them to continue their noncompliance with the Affordable Care Act’s (ACA) contraceptive coverage requirement. Applying the usual preliminary injunction standard, the district court was required to evaluate the harm that would come to the plaintiffs if they were required to comply with the law and the harm that would occur if they were allowed to continue their noncompliance. It was easy for the court to understand the harm that the plaintiffs alleged; according to the opinion they might “suffer irreparable harm . . . in that they would be forced to comply . . . to the detriment of their religious exercise.” Fair enough as far as it goes. We may not all agree that the harm involved on the facts of this case would actually be that bad (and we would argue it does not even constitute a legally cognizable harm), but we can agree that loss of constitutional rights does constitute a harm, and at a preliminary stage of litigation, given the conflicting opinions in other courts around the country on this question, it’s not unreasonable for a court to contemplate the idea that requiring enforcement of the law might later turn out to have been a constitutional violation, which would then be an irreparable harm.
Now what about the harm on the other side? Apparently there was very little, as the court wrote that the harm was “only” that the law “may apply to Plaintiffs a few months later than expected.” And here is where we run into trouble. Because that is not the only harm at all. It’s not even the most important harm. This bizarre framing of the harm – that the government won’t get to apply the law right away – positions the counterbalancing interest in this case as simply the government’s desire or right to apply a law. What law? Apparently any law would be the same. The phrasing minimizes the harm, neutering the real interests at stake and turning it into a kind of yawn-inducing trifle.
The problem is that the decision takes no heed of the fact that the government’s interest in enforcing the law is not just in exercising its regulatory power for the sake of it, but in protecting the plaintiffs’ female employees’ access to a statutorily-entitled insurance benefit. Some would argue (ourselves included), that the contraceptive coverage requirement is actually an important equality right with practical and symbolic dimensions, but even without taking the analysis to that level, it is beyond argument that granting an injunction means that for however long the injunction is in effect, female employees of the colleges in question are being denied a statutory right. How to balance that right against the potential of a free exercise violation is the next step in the analysis, but there’s no hope of even getting there when women are so consistently written out of the picture by courts when they are considering what’s at stake in these cases.
 Dordt College v. Sebelius, No. C 13-4100-MWB, at *6, Order Regard’g. Pls.’ Mot. for Prelim. Inj., (May 21, 2014 N.D. Iowa).
Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Center for Gender and Sexuality Law.
*Image sourced from http://anotherschwab.com/2013/09/30/missing-the-point-of-edtech/.