Today, the ACLU and the ACLU of Illinois filed a friend-of-the-court brief in two additional appeals challenging the Affordable Care Act’s (“ACA”) contraceptive coverage rule. Our brief urges the Seventh Circuit Court of Appeals to reject requests by secular, for-profit companies and their owners to block enforcement of the rule. The district court in both cases refused to grant the companies’ requests, and they seek to overturn those decisions.

The contraceptive rule, which requires health plans to include coverage for contraceptive care without a co-pay or deductible, ensures that millions of women will have access to affordable birth control, and represents one of the greatest advancements for women’s health in decades. Ignoring this fact and the fact that the contraceptive rule is constitutional, the companies and their owners argue that providing health insurance coverage for contraception to their collective 1,168 employees imposes a “substantial burden” on their religious exercise. We strongly disagree.

An independent decision by an employee to use her health plan (which is a benefit earned during employment — just like salary) to obtain health care, including contraception, that her employer personally objects to does not substantially burden the employer’s religious exercise. As we noted in the brief, the contraceptive rule does not compel or coerce employers to use or purchase contraception themselves. The rule simply requires employers to provide their employees with a comprehensive health plan.

If the companies and their owners prevailed, it would allow employers to impose their religious beliefs on their employees, which the courts have repeatedly held is improper. For example, the courts have said that an employer cannot pay men and women differently based on the owner’s religious belief that men should be paid more because the Bible considers them head of the household. The Seventh Circuit should follow these cases and refuse to allow employers to deny equal rights and benefits to their employees — who themselves have free exercise rights under the Constitution.

Also joining the ACLU on the brief are the Anti-Defamation League; Catholics for Choice; Hadassah, the Women’s Zionist Organization of America; the Interfaith Alliance Foundation; the National Coalition of American Nuns; the National Council of Jewish Women; Protestants for the Common Good; the Religious Coalition for Reproductive Choice; the Religious Institute; the Unitarian Universalist Association; and the Unitarian Universalist Women’s Federation.

Download a copy of the brief.

Cross-posted at the Blog of Rights.

Professor Randolph Stone of the University of Chicago Law School responded in the Chicago Tribune to Chicago Treasurer Stephanie Neely's call for the city police to adopt a policy know as "stop-and-frisk". The ACLU has long opposed such policies. In 2003, we represented Olympic Gold Medalist Shani Davis in a lawsuit challenging repeated stop-and-frisk searches by Chicago police.
Professor Stone writes:

In New York City, for example, recent studies revealed that more than nine out of 10 people who were subjected to a stop-and-frisk search were young men of color — that is, simply being a young man of color on the streets of some neighborhoods in New York appears to make one "suspicious" enough to stop and pat down. In 2012, a federal district court judge found that many of those stops did not meet the constitutional standard for police to stop and detain someone. Yet another federal court judge this year stopped part of the policy after finding the standards for such stops to be too vague — including such undefinable definitions as someone engaged in "furtive" movements.

The biggest flaw with Neely's argument is her assertion that a stop-and-frisk policy would be novel or new in Chicago. Chicago has had a stop-and-frisk policy for decades — and that policy (in its many forms) has resulted in the arrest and detention of thousands of young men of color on dubious grounds.

Read the whole thing.