Republican Attorneys General Drop Their Legal Attack On Birth Control — For Now

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Birth Control Pill Container

Earlier this month, six Republican state attorneys general gave up their attempt to convince a conservative federal appeals court to revive a lawsuit seeking to limit many women’s access to birth control. The six elected officials signed their states only one of the many lawsuits claiming religious employers are immune to Obama Administration rules requiring most employer health plans to cover contraception. Last year, a Nixon-appointed federal district judge dismissed this lawsuit, holding that the plaintiffs lack standing to bring it.

“Standing” is the requirement that a plaintiff show that they have actually been injured by a law before they are allowed to sue to challenge it in federal court. No one, not even a state attorney general acting on behalf of his or her state, is allowed to bring a case to federal court simply because they do not like the law, or because they are able to offer some speculative reason why the law might somehow injure them at some point in the future. Moreover, when a state sues to challenge a law, they are not permitted to sue simply “to protect her citizens from the operation of federal statutes” the injury that forms the basis of the lawsuit must be particular to the state as a state.

Nevertheless, in the wake of President Obama’s election to the White House, many state attorneys general have tried to set themselves up as censors over legislation conservatives disapprove of, often making rather audacious legal arguments to claim standing to challenge a law. Virginia Attorney General Ken Cuccinelli (R-VA), for example, argued that a state legislature can essentially pass a law that makes the constitutional standing requirement disappear. The state attorneys general in the birth control case offered a somewhat less tenuous argument — they speculated that the birth control rules would somehow lead to the state paying more in Medicaid funds, among other things — but this kind of speculative claim was not enough to get them into federal court.

Nevertheless, the six Republican officials vow to continue they fight to reduce access to contraception. Nebraska Attorney General Jon Bruning (R) says his office is considering “the best means for challenging the law” by either joining an existing suit or making a new attempt to get into court.