2 comments  
miss-the-point

Image Credit: Andrew Schwab

 

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.”[1] 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.”[2] 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.

 


[1] 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).

[2] Id.

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/.

 

2 comments

  1. That is a good tip particularly to the individuals
    novicws at the blogosphere. Brief but very accurate information…
    Many thanks for sharing this one. Extremely important read article!

    Have a look at my webb page :: how to download hack tools

  2. I needed saying thanks to you for doing this fantastic read!!
    I certainly loved every small amount of it. You will
    find you bookmarked to check out new things you post…

    Feel free to visit mmy homepage download tool hacking

Add a comment


Comments are subject to moderation and do not necessarily reflect the opinions of
Columbia Law School or Columbia University.

FEATURED POSTS

CATEGORY CLOUD

"Homeland" Security Abortion Rights Adoption adultery Affordable Care Act Alien Tort Claims Act Amicus Brief Asylum Bankruptcy BDS Bullying Census Politics Children Citizenship Civil Unions Columbia Law School Compulsory Marriage Condoms Contraception Contraception Mandate Cordoba House Criminal Law Cures for Homosexuality Defense of Marriage Act Disability Rights Discrimination Divorce Domestic Partnership Domestic Violence Domestic Workers Don't Ask Don't Tell Economic Justice Education Egypt Elections Employment Discrimination ENDA Estate Planning Events Family Law Fellowships femininity Free Speech Gender and Technology Gender Identity Discrimination Gendering the Economy GSL Online Haiti Hate Crimes Health Care Hilary Clinton Hillary Clinton HIV HIV Discrimination Hobby Lobby Homelessness Homophobia Housing Human Rights Identity Politics Illegitimacy (sic) Immigration Reform In-ing Incest India International Law Islamophobia Israel Justice Sotomayor King & Spalding Labor Trafficking Land Reform Law School Legal Profession Legal Scholarship Lesbian & Gay Parenting LGBT Parenting Marital Status Discrimination Marriage Masculinity Medicaid Michelle Obama Migration Military National Security Obama Administration Obama Appointments Outing OWS Palestine Parenting Pinkwashing Policing Politics of the Veil Polyamory Popular Culture Pornograpy Pregnancy Presidential Politics Prisons Privacy Products Liability Profanity Prop 8 Prosecutorial Discretion Publications Public Rights/Private Conscience Queer Theory Queer vs. Gay Rights Race and Racism Racial Stereotyping Rape Religion Religious Accommodation Religious Exemption Religious Freedom Restoration Act Religious Fundamentalism Reproductive Rights Reproductive Technology RFRA Romania Rwanda Sartorial Commentary Schools Sex Discrimination Sex Education Sex Stereotyping Sexting Sex Trafficking Sexual Assault Sexual Duplicity Sexual Harassment Sexual Health Sexuality and Gender Law Clinic Sexual Orientation Discrimination Sex Work SMUG Sodomy Law Reform Sports Supreme Court Surrogacy Technology Title IX Trafficking Transgender Uganda Uncategorized Violence Women and Poverty Women of Color Zimbabwe

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.