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Wednesday, July 17, 2024 | Back issues
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Info Sought on Wisconsin’s Contraception Policy

MADISON, Wisc. (CN) - An atheist group sued Wisconsin for records on how the state changed its laws on contraceptive coverage in reaction to the Hobby Lobby ruling.

The Madison-based Freedom From Religion Foundation sued the Wisconsin Office of the Commissioner of Insurance on Dec. 17 in Dane County Court. The state withheld some documents in responding to the foundation's request for communications about the state's contraception policies.

"It is troubling that the office, which apparently issued a change in policy concerning an important health-related matter, has done so in secret," Patrick Elliott, the foundation's attorney and co-plaintiff, said in a statement.

The Supreme Court in June, in Burwell v. Hobby Lobby Stores Inc., ruled that "requiring certain family-owned corporations to pay for employees' insurance coverage for contraception under the Affordable Care Act violated a federal law known as the Religious Freedom Restoration Act of 1993," the complaint states.

Several media outlets have reported that the Insurance Commissioner's Office claims that the Hobby Lobby ruling pre-empts Wisconsin's Contraceptive Equity Law, which the state will no longer enforce. It requires that insurance policies that cover outpatient care, preventive services and prescription drugs also cover contraception.

The foundation claims that Hobby Lobby does not preempt Wisconsin's contraceptive mandate, as the Religious Freedom Restoration Act applies only to the federal government and not the states.

The foundation requested "any records related to non-enforcement of contraceptive coverage" from the Office of the Commissioner, including all communication among the staff of the commissioner's office, and communication between the commissioner's office and the governor's office, the media and other non-staff.

Mollie Zito, the commissioner's office chief legal counsel, sent 16 pages of records to the foundation. Zito said some documents were excluded because of attorney-client privilege and attorney work product exceptions to open records laws.

But some, she wrote, were excluded based on the balancing test of whether the public good is best served by releasing records or by keeping them private, according to Elliott.

Zito did not cite a specific public policy reason for excluding the additional records, nor did she specify how much and what records were being withheld, the foundation claims, making her denial unlawful.

Next, the foundation made a similar records request to the Office of the Governor.

They were provided with 36 pages of documents, with two withheld on attorney-client and work product exclusions, the complaint states.

The foundation says these denials also were unlawful.

It seeks declaratory judgment and a mandamus order requiring the defendants to produce the records.

It is represented by Christ Westerberg with McGillivray Westerberg and Bender.

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