On October 4, 2004 the United States Supreme Court denied certiorari in Catholic Charities of Sacramento v. Superior Court of Sacramento? thereby leaving intact an Americans Civil Liberties Union (ACLU)-drafted2 religious exemption to California's contraceptive drug insurance mandate.3 The denial of certiorari was a significant victory for those seeking to require health care providers and payers4 to participate in the delivery of elective reproductive treatments and procedures, even if the provision of such procedures would require the providers and payers to violate their consciences. The denial left standing a California Supreme Court decision upholding a narrow exemption for religious employers and finding a compelling governmental interest in coverage of contraception as a means to eliminate sex discrimination.
However, the victory should not be regarded as a signal by legislatures to pass, and other courts to approve, laws mandating the inclusion of prescription contraceptives in employee prescription drug benefit plans. It ought not to be regarded as a signal because the court made mistakes in disposing of Catholic Charities' First Amendment claims and made false assumptions about women's health care that false assumption being that contraception is basic women's health care such that failure to provide coverage for it amounts to sex discrimination.
In part II of this article, I discuss the ACLU agenda behind the religious-exemption approved by the court. In part III, I discuss how the California contraceptive mandate embodied the ACLU view. In parts IV and V, I offer a critique of the California Supreme Court's decision approving that exemption, with a discussion of the First Amendment implications. In part VI, I challenge the court's assumption that laws requiring contraceptive coverage eliminate sex discrimination, and I conclude in part VII with a different vision of women's healthcare.
II. THE ACLU REPORT, "REPRODUCTIVE RIGHTS AND RELIGIOUS REFUSALS"
On January 22, 2002,5 the ACLU released a policy guide entitled "Reproductive Rights and Religious Refusals,"6 setting forth its view of the proper balance between the rights of health care providers, and of employers in the context of employee health insurance benefit plans, to object to participating in controversial reproductive treatments and procedures and the rights of women to obtain those treatments and procedures.
The ACLU's report begins with a discussion of the issue by providing historical background on conscience clauses,7 enacted at the time of or immediately after the Court's decision in Roe v. Wade8 These clauses protect health care providers, both individual and institutional, from forced involvement in abortion. For years, the protection of these clauses remained largely unchallenged.9 Today, the ACLU notices a renewed interest in conscience protections which it says can be explained by three factors: (1) the expansion of religious health systems through mergers and acquisitions;10 (2) the growth of managed care with attendant interests in patients' access rights;11 and (3) the development of new reproductive technologies, such as emergency contraception.12
The ACLU then turns to the constitutional dimensions of the debate. The report rightly points out that the United States Supreme Court has not specifically addressed the question of the interaction between a woman's asserted interest in obtaining a reproductive treatment and a provider's asserted interest in objecting to the procedure.
As for the reproductive issues, the ACLU acknowledges that "although the U.S. Constitution protects reproductive rights, it does not ensure access to comprehensive reproductive health services or coverage."13 The ACLU then cites case law clarifying that the abortion right under federal abortion jurisprudence is a negative liberty-a right from governmental interference, not a right of positive access. …