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Contraception mandate’s split rulings move battle closer to the Supreme Court

- The Washington Times - Saturday, July 27, 2013

A long-simmering fight over the contraception mandate tied to President Obama's health care law took a step closer to the Supreme Court on Friday, when a federal appeals court decided that "for-profit, secular corporations cannot engage in religious exercise."

The opinion by the 3rd Circuit Court of Appeals provided no relief to Pennsylvania-based Conestoga Wood Specialties from a federal rule that requires employers of 50 or more employees to insure an array of contraceptives in their company health plans.

But it diverges from a prior ruling this month by the appeals court in Denver, which granted a preliminary injunction to an Oklahoma company that, like Conestoga, objected to the mandate on religious grounds.

The split among the circuit courts, with potentially more to come from other circuits across the country, makes the subject ripe for review by the Supreme Court.

In their opinion, the 3rd Circuit said landmark cases such as Citizens United recognized corporations' rights to free speech but that there is an absence of precedent when it comes to matters of faith.

"Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion," the court said.

Yet the 10th Circuit Court of Appeals on July 19 granted Hobby Lobby, a crafts store chain based in Oklahoma City, a preliminary injunction from the mandate until the merits of its case are decided in court — a decision that religious opponents of the mandate lauded as their most significant legal victory to date.

Dozens of corporations have sued over the rule linked to the Affordable Care Act of 2010. The mandate applies to for-profit employers’ health plans issued on or after August 2012, so companies are seeking relief from the courts as pressure mounts to comply with the rule.

Attorneys for Conestoga, which manufactures wood cabinets and has 950 employees, said the company is currently subject to the mandate and complying with it.

Its owners, the Hahn family, practice the Mennonite religion and especially object to emergency contraceptives taken after sex, such as Plan B and ella, that "may cause the demise of an already conceived but not yet attached human embryo."

But supporters of the mandate say it is not overly burdensome and that employers cannot impose their personal beliefs on a diverse contingent of employees. Some experts say health coverage is little different than salary, which could be used to purchase the contraceptives, and that corporate owners would distance themselves from their corporation if they were, say, sued for a tort claim.

"Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything," the 3rd Circuit said Friday. "All responsibility for complying with the Mandate falls on Conestoga."

Houses of worship are exempt from the mandate, while religiously affiliated hospitals and universities qualify for an accommodation from the Obama administration that puts up a firewall between faith-based nonprofits and coverage for their employees’ birth control.

Under the regulatory compromise, insurers or third-party administrators will cover and pay for birth control through separate policies, so the nonprofit employers are not involved in covering their employees’ contraceptives.

Georgetown University and the Catholic Hospital Association this month accepted the terms of the accommodation, but American's Catholic bishops and other religious groups say the accommodation does not go far enough.

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