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FLASHBACK: Obamacare a test of faith for employer over birth control

- The Washington Times - Monday, October 14, 2013

Employees at a western Michigan manufacturing company might not all agree with the Catholic owners' religious stance on birth control, but that doesn't mean any of them want their generous health benefits to change.

That's how John Kennedy, who founded Autocam Corp. 25 years ago, outlined a practical slice of his argument against a new mandate that requires large employers to insure birth control as part of their company health plans.

Mr. Kennedy said his Catholic family accepts that life begins at conception, and thus the church's teaching that interfering with that is an "intrinsic evil."

"We never have covered these things," Mr. Kennedy said in an interview alongside his wife, Nancy, and their 23-year-old daughter, Margaret, in downtown Washington.

They visited the nation's capital last week to lay the groundwork for a legislative remedy if they do not get relief from the courts from the mandate, a rule the Obama administration imposed among the sweeping health care reforms in the Affordable Care Act.

Dozens of religiously devout business owners have sued over the mandate, and federal appeals courts have split on the issue, making it ripe for review by the Supreme Court this term. Opponents particularly object to insuring morning-after pills like Plan B and Ella, which they equate with abortion.

The Kennedys are complying with the mandate for now, but say they face an impossible set of choices if it is not rolled back. Without relief, they would have to either violate their conscience, drop their employees' health coverage or flout the mandate and face millions of dollars in fines that would cripple the business.

"I don't know what I'm going to do," Mr. Kennedy said. "There is no right answer."

Feature of Obamacare

The contraception mandate has been a constant subplot to the Obamacare drama that has played out on Capitol Hill since 2010, when Democratic majorities muscled the overhaul through Congress.

Houses of worship are exempt from the mandate, while religious nonprofits have obtained an "accommodation" that divorces them from managing or paying for birth-control coverage — although many say that is a mere accounting trick. As it stands, for-profit entities must fully comply with the mandate, regardless of the religious views of their owners.

Conservative lawmakers and plaintiffs across the country say the rule is a blatant infringement on the First Amendment right of free exercise of religion and violates the 1993 Religious Freedom Restoration Act.

But the Obama administration has said contraception use is widespread and often unaffordable for women. Supporters of the rule say business owners cannot impose their personal beliefs on a diverse array of employees at for-profit companies, and that health insurance is not much different than other forms of compensation that allow people to purchase whatever they want.

"We hope that the court will uphold the rule, and we will be weighing in with a brief as we have done in over 30 of these cases," said Brigitte Amiri, a senior staff attorney at the American Civil Liberties Union.

Fast-track to the high court

The battle lines are drawn, but analysts of all stripes agree the case is on the fast-track for the highest court in the land.

"I think it's a foregone conclusion the Supreme Court will take this up," said Holly Lynch, a health law policy and bioethics specialist at Harvard Law School.

The Obama administration has asked the Supreme Court to review the 10th U.S. Circuit Court of Appeals' decision to grant relief to Hobby Lobby — an Oklahoma-based crafts-store franchise — from the mandate until its lawsuit can be decided on its merits.

Two other federal appeals courts, the 3rd and 6th Circuits, have sided with the Obama administration's stance.

"The combination of a circuit split and a petition from the United States, that's — yeah, pretty good," said Kevin C. Walsh, a professor at the University of Richmond School of Law who thinks a high-court review is inevitable.

Mr. Walsh, who is representing a nonprofit that is fighting the mandate, said the justices will look for the case that offers the best vehicle for resolving the topic's legal questions. The Hobby Lobby case might be the one to watch, since it attracted numerous friend-of-the-court briefs and was heard by all the circuit's judges, not just a three-judge panel.

"If you were placing odds, that would be the most likely one," Mr. Walsh said.

To the Kennedy family, the mandate is not only an intrusion on their religious freedoms, but an unnecessary one.

Armed with an iPad, Mr. Kennedy showed off a side-by-side comparison of the Autocam health plan for his 700 employees versus the national average. His employees make out rather well, the chart shows, and the family covers 100 percent of their employees' costs for preventative care — a drive to ensure the well-being of his employees that happens to align with a key tenet of Obamacare.

The company also doles out $1,500 per year to each employee's Health Savings Account, a pot of money that could let employees' obtain contraception if they want it.

"I don't even know how they use it," Mr. Kennedy said.

Same as wages?

Analysts say such compensation, in its varying forms, presents a key legal question for the courts. Is paying for contraceptives through a health plan much different, they ask, than paying their employees a salary or offering other forms of compensation that can be used to acquire birth control?

"It strikes me as difficult to say, 'I have an objection to one but not the other,'" said Ms. Lynch of Harvard.

Mr. Kennedy said his family is not responsible for how Autocam's employees spend their money, including the HSA funds, but the mandate "changes the situation."

Suddenly, he said, they are required to play a direct role in providing contraceptive drugs, devices or procedures to their employees.

"This is the line our faith requires us to respect, and that is what we're trying to do here," he said. "It's a terrible predicament to be forced into by your country."

The ACLU's Ms. Amiri said such a stance provides a "false choice."

"Providing a comprehensive health plan to his employees doesn't burden his religion beliefs any more than paying salaries, which employees may use to obtain care or services that may be contrary to the owner's religious beliefs," she said.

Rep. Bill Huizenga, a Michigan Republican who said Mr. Kennedy is a respected businessman in his district, said the calculus would be different if publicly traded corporations were under the microscope in this debate.

But self-insured Autocam is a family-run business in the strictest sense. Its shareholders consist of Mr. Kennedy and his immediate family, with daughter Margaret and her three brothers — ages 21, 26 and 28 — each owning a stake in the company.

Autocam employees seem to like their plan, and American businesses should be able to agree on compensation packages without governmental interference, according to Mr. Huizenga.

"This isn't France It's called the free market," he said, adding, "John's been swimming upstream on this."

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