Usually, lawsuits that try to use “religious freedom” to prevent women from using their health plans for birth control are launched by employers, such as Notre Dame and Hobby Lobby. (This overlooks that the plans, like paychecks, technically belong to the people who earn them through working—but onward.)
One of the anti-contraception lawsuits on the dockets, however, gets more personal. It’s focused on stopping just three individuals—two grown women and one minor—from obtaining birth control coverage. And thanks to the 8th U.S. Circuit Court of Appeals, this individualized challenge to these three people’s access is being kept alive.
Missouri Republican state Rep. Paul Joseph Wieland does not want his three daughters to have access to birth control, in their case through the group plan offered by Wieland’s employer, the state of Missouri. The plan does not require women to use birth control, of course, but the mere fact that his daughters might disobey his anti–birth control teachings bothers Wieland. A judge asked why Wieland doesn’t just tell his daughters, “We expect you do abide by our religious tenets.” Wieland’s lawyer, Timothy Belz, replied, “Well, we all have high hopes for our kids, that is true. We all expect and want them to obey us, they don’t always … ” Thus Wieland would like a little help from the government just in case his girls disobey Daddy’s religious beliefs.
Belz also argued that federal minimums on what a standard health care plan must cover is the equivalent of passing “an edict that said that parents must provide a stocked, unlocked liquor cabinet in their house whenever they’re away for their minor and adult daughters to use.” The Wieland team also compared contraception to pornography. I suppose both prevent pregnancy, in their way.
Wieland’s argument is pretty straightforward: If Hobby Lobby gets to deny its employees contraception coverage, why can’t he do the same for his daughters? If you’re disturbed by the amount of control he wants to exert over his children, then it’s also disturbing to consider how much control Hobby Lobby wants over its employees. The only real difference is that Hobby Lobby could claim it is just trying not to “pay for it”; Wieland is a little more honest about his real aims. Because of this, the 8th Circuit Court reinstated Wieland’s lawsuit on Monday.
Of course, just because the gist of Wieland’s argument sounds like Hobby Lobby’s doesn’t mean that Wieland will win. Hobby Lobby v. Burwell was decided on a balancing test: The court argued that the Department of Health and Human Services could find a way to make sure women get birth control while also protecting Hobby Lobby’s desire not to pay directly for plans that cover it. (The administration has already found just such a fix, creating a mechanism for insurance companies to offer coverage directly to women whose employer plans do not cover it. So far, Hobby Lobby hasn’t challenged this workaround.) But Wieland can’t argue that he’s just trying not to pay for it, since the conservative argument is that the employer is the one “paying for” the insurance, not the employee.
Wieland’s big ask also creates a much bigger bureaucratic headache for insurance companies and HHS: the standing of individuals on a group insurance plan to challenge the right of other individuals on the same plan to use it for birth control on the basis of familial connection. As Ian Millhiser at ThinkProgress notes, “[I]t is a relatively simple administrative task for an insurance company to note that the plan that covers Hobby Lobby’s employees does not include birth control and to adjust premiums accordingly,” but another thing entirely “for insurers to keep track of the particular religious beliefs of every individual in their network of customers and adjust each plan according to those religious beliefs.”
We certainly don’t want a “Daddy said I could” checkbox for women who want to buy birth control through their insurance plans, but that is exactly what Wieland and his lawyers are trying to make happen.