Eight Years Ago, Even Republican Judges Rejected Notre Dame’s Attack On Contraceptive Access

Earlier today, 43 Catholic-affiliated organizations, including the University of Notre Dame, filed twelve separate lawsuits claiming that the Obama Administration’s efforts to expand access to birth control violate the religious liberties of conservative Catholics. For California residents, however, this lawsuit is like stepping into a time warp, since the overwhelmingly Republican California Supreme Court rejected a nearly identical lawsuit over eight years ago.

In 1999, California enacted a law guaranteeing that many employer-provided insurance plans include coverage for birth control. Catholic Charities sued, raising very similar claims to the ones raised in today’s lawsuits. When the case reached the state supreme court in 2004, however, five of the court’s six Republican justices held that, even if the law were examined under the strictest level of constitutional scrutiny, California’s contraceptive access law is constitutional:

The [law] serves the compelling state interest of eliminating gender discrimination. Evidence before the Legislature showed that women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in part to the cost of prescription contraceptives and the various costs of unintended pregnancies, including health risks, premature deliveries and increased neonatal care. Assembly, Senate and legislative staff analyses of the bills that became the [birth control law] consistently identify the elimination of this economic inequity as the bills’ principal object. . . .

Strongly enhancing the state’s interest is the circumstance that any exemption from the WCEA sacrifices the affected women’s interest in receiving equitable treatment with respect to health benefits. We are unaware of any decision in which this court, or the United States Supreme Court, has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties. . . . [I]n rejecting a religious employer’s challenge to a law requiring him to pay Social Security and unemployment taxes for his employees, the [Supreme C]ourt wrote that “[g]ranting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.

Only one justice dissented from this outcome, Justice Janice Rogers Brown, who President George W. Bush later appointed to a federal appeals court in D.C. In her new job, Judge Brown wrote an opinion suggesting that all labor, business or Wall Street regulation is unconstitutional. In other words, eight years ago, the case against contraceptive access earned barely any support even on one of the most Republican courts in the country, and the sole justice who voted to strike California’s law down — Judge Brown — is the same judge who once compared liberalism to “slavery” and Social Security to a “socialist revolution.”