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March 22, 2012 

 ALABAMA AG FILES MOTION TO INTERVENE
IN EWTN LAWSUIT CHALLENGING MANDATE FOR
CONTRACEPTION COVERAGE

Motion to intervene 
Complaint in intervention 
Brief in support of motion to intervene
Exhibits

(MONTGOMERY)-- Alabama Attorney General Luther Strange today filed a motion to intervene in a federal lawsuit challenging the contraception coverage mandate imposed by the Obama Administration under the healthcare law signed by the President two years ago Friday. 

Today’s action—regarding a mandate particularly for contraception coverage—comes as the U.S. Supreme Court is set to hear the broader issue of whether the federal government may mandate that individual citizens be required to purchase insurance coverage. Attorney General Strange and other state Attorneys General are challenging the individual mandate in the U.S. Supreme Court, which will hear three days of argument March 26-28.  

The contraception mandate requires all employers and insurance companies – including those with religious and conscience-based objections – to provide coverage for all FDA-approved contraceptive methods and sterilization procedures.  Among these items are the abortifacients known as the “morning-after pill” and the “week-after pill.”  The only religious exemption is a narrow one that applies primarily to churches and other houses of worship.  Religious non-profits, schools, universities, and other enterprises – including those who offer critical social services to the needy – do not qualify for the exemption.

The lawsuit that Alabama is seeking to join was filed by Eternal Word Television Network, Inc. (EWTN) in the U.S. District Court for the Northern District of Alabama on February 9, and is styled Eternal Word Television Network, Inc. v. Kathleen Sebelius, et al.

The Attorney General explained that the mandate violates federal law and would require state officials to regulate insurance in violation of Alabama law: “The freedom of religion, and to believe as one sees fit, is our ‘first freedom’ under the United States Constitution.  The people of Alabama have recognized the importance of this freedom and have enshrined it in their Constitution as well.  Alabama law does not allow anyone to be forced to offer a product that is against his or her religious beliefs or conscience.”

“The healthcare law signed by President Obama two years ago is taking effect now, and the consequences are dire.  The law forces the States to be used as instruments in carrying out the federal government’s unconstitutional policies,” Strange said.  “Under the law, States have no discretion.  States instead must immediately begin regulating their insurance markets and enforcing federal provisions such as the contraception mandate, without regard to their citizens’ religious beliefs or conscientious objections.”

EWTN is the world’s largest Catholic media network, and objects to the contraception mandate on religious grounds.  Under the mandate, EWTN and other religious employers and insurers are forced to provide health coverage for services and procedures that violate their religious beliefs and consciences.  EWTN is represented in this lawsuit by The Becket Fund for Religious Liberty, a non-profit, public-interest legal and education institute that protects the free expression of all faiths, headquartered in Washington, D.C.

Attorney General Strange filed a motion to intervene in the lawsuit on the grounds that the mandate requires Alabama to regulate its health insurance market in a way that violates the First Amendment to the U.S. Constitution, the federal Religious Freedom Restoration Act, the Alabama Religious Freedom Amendment, and other laws. Pursuant to the new healthcare law, known as the Affordable Care Act (ACA), the Secretaries of the U.S. Departments of Health & Human Services, Treasury, and Labor promulgated the contraception mandate as an interim final rule on August 3, 2011 and as a final rule on February 15, 2012.  As a final rule, the mandate is federal law that must be immediately followed.

Since religious employers and insurers cannot comply with the mandate on religious and conscience-based grounds, the mandate forces them to choose among violating their beliefs, incurring substantial fines, or exiting the health insurance marketplace altogether.  Alabama explained in its court filings that such an event will leave persons without insurance, forcing the State to pick up the tab.  The State’s indigent care costs are likely to go up, as are the State’s Medicaid rolls. 

In the wake of public outcry, The White House had spoken of a compromise where insurers would pay for the contraception coverage instead of the religious employers.  However, the mandate has not been amended to reflect the Administration’s proposal.  The proposal is not a solution in any event.  Based on the Departments’ statements, religious employers would still be required to provide plans that cover services that violate their beliefs.  And the proposal does nothing to address the concerns of religious insurers who would be forced to cover the services.  While they work out the details of the proposal, the Departments have stated that they will voluntarily choose not to enforce the mandate for one year.

Attorney General Strange noted:  “The so-called ‘compromise’ proposed by the Obama Administration isn’t a compromise at all.  The mandate is final.  We only have the federal government’s assurances that they will not enforce the mandate for a short period of time while they work out the details of a compromise rule that would still force religious insurers and employers to provide coverage that violates their religious beliefs and consciences.  The issue is simple:  Either Alabamians and Americans around the country will be allowed to exercise their religious freedom to say ‘no’ to something they disagree with, or they won’t. We hope the Obama Administration will listen, and adopt a position that supports our first freedom rather than undermines it.”  

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For More Information Contact:
Joy Patterson (334) 242-7491
Suzanne Webb (334) 242-7351
Luther Strange
Alabama Attorney General
www.ago.alabama.gov