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Congress takes Obamacare contraception battle to court

- The Washington Times - Tuesday, January 28, 2014

Congress took its battle over Obamacare and contraception to court Tuesday, with Democrats filing legal briefs with the Supreme Court arguing the administration’s coverage mandate promotes public health, and senior Republicans countering that it flouts religious freedom laws for which they had voted.

Justices will hear oral argument in March on the so-called contraception mandate that President Obama issued in conjunction with his health care law, but which is being challenged by devout religious business owners who say they are being forced to violate their beliefs by paying for employee coverage.

Sen. Orrin G. Hatch of Utah and 14 other members of Congress filed a brief supporting the business owners, saying the Religious Freedom Restoration Act (RFRA), which passed with bipartisan support in 1993, was designed to protect Americans from new laws that infringe on their free exercise of religion.

“Congress has commanded equal treatment of all under a religion-protective rule,” they wrote. “The government may not pick and choose whose exercise of religion is protected under RFRA and whose is not.”

Yet House Minority Leader Nancy Pelosi of California and 90 fellow Democrats said Congress also spoke in 2010 when it passed the Affordable Care Act, which was the basis for the new mandate.

The Obama administration and its Democratic allies say birth control is widely used but often unaffordable to women, and that corporations cannot impress their religious views on their employees. Plus, they argued Tuesday, the health law does not violate RFRA’s protections against “substantial” burdens on one’s beliefs.

“It merely requires the corporations, like other employers, to provide comprehensive insurance coverage under which their employees may make their own personal decisions, in consultation with their doctors, whether to use whatever form of contraception, if any, best suits their individualized health and wellness needs,” they wrote.

A third contingent, led by Sen. Ted Cruz, Texas Republican, said if the Obama administration can carve out exemptions for employers and people who lost their health plans because of Obamacare, they can give devout business owners a break, too.

“Time and time again, this administration has brazenly disregarded the very law that it championed,” Mr. Cruz wrote Tuesday, along with Sens. John Cornyn of Texas and Mike Lee of Utah.

It is not uncommon for members of Congress to weigh in on legal issues through friend-of-the-court, or amicus curiae briefs, particularly ones as politically charged as the contraception mandate.

Houses of worship are exempt from the rule and religiously affiliated nonprofits were granted an “accommodation” that’s been accepted by some institutions, but not others.

Last week the Denver chapter of Little Sisters of the Poor won a key legal victory when the Supreme Court said the nuns and similarly situated organizations do not have to sign off on the coverage until their case is heard on its merits in a federal appeals court.

For-profit entities did not receive any form of relief, teeing up testy legal battles across the country and a split among the federal appeals courts.

The Supreme Court combined cases from two companies — Hobby Lobby, a crafts-supply chain that won its case at the circuit level, and Conestoga Wood Specialties, a Pennsylvania company that lost in the lower court.

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