- The Washington Times - Thursday, January 17, 2013

President Obama’s mandate that most private companies provide health insurance plans that cover the costs of contraceptives has met with considerable headwinds in the legal system, where nine of the 14 federal courts to rule so far have sided with employers who say the mandate violates their beliefs and infringes on their religious liberties.

Although the broad scope of the president’s health care law survived Supreme Court scrutiny last year, the challenges to the contraception mandate remain major legal hurdles for the Obama administration, and the deep skepticism shown by a number of judges makes it likely that the high court will be called upon to settle this dispute, too.

“I think the case is probably heading for the Supreme Court,” said Timothy Jost, a health care scholar at the Washington and Lee University School of Law. “We already have a split in the circuits.”

The birth control mandate has been a flash point since it was announced a year ago.

Under the new rules, all employers with the exception of houses of worship have to pay for — or make available through an outside insurer — contraceptive coverage for employees as part of their insurance plans, including such items as the “morning-after pill,” sterilizations and other treatments to which the Catholic Church, many evangelicals and other religions object.

Religiously affiliated charities and schools immediately objected to the regulations issued by the Department of Health and Human Services, as did some devout business owners, and more than 40 challenges are winding their way through the courts, according to the Becket Fund for Religious Liberty, which is helping with many of the lawsuits.

None of the courts has reached a decision on the merits of the cases, but the key question with which judges appear to be grappling is whether a corporation other than a church can be said to “exercise” religion and enjoy constitutional protections for freedom of worship.

A federal judge in Colorado posed the query last month in an order that granted a heating, ventilation and air conditioning company a temporary reprieve from the mandate.

Broad challenge

The plaintiffs in the cases range from construction firms to Christian bookstores and are owned by Catholics, evangelicals and Mennonites.

“It’s way beyond a Catholic issue,” Becket Fund spokeswoman Emily Hardman said, noting the heavy involvement of Protestant organizations. “These are devout pro-life institutions.”

In court papers, business owners say they try to run their businesses in line with the tenets of their faiths. Their most common — and, many say, strongest — argument is that the mandate violates the 1993 Religious Freedom Restoration Act, aimed at preventing laws that substantially undercut an individual’s free exercise of religion. The analysis gets tricky, however, when business owners equate themselves and their personal principles with their rights as businesses, Mr. Jost said.

“Corporations exist for a reason,” he said. “They clearly wouldn’t be saying that if the corporation was being sued for a tort.”

Having said that, “I don’t see this as an easy case at all,” Mr. Jost added. “And that’s evidenced by the fact that the courts have been all over the place.”

The American Civil Liberties Union has filed friend-of-the-court briefs in 11 of the cases in support of the mandate, noting that it does not force the business owners to use contraception, directly provide it to employees or endorse its use.

In court papers, judges have noted that some of the complaining companies have provided contraception coverage in the past, but are changing course during the implementation of Mr. Obama’s signature law. That could play into the legal analysis because injury is difficult to claim when it involves something done “voluntarily for many years,” said Brigitte Amiri, a staff attorney at the ACLU.

Francis J. Manion, senior counsel for the American Center for Law and Justice, said many organizations reviewed their insurance plans amid the high-profile debate and were surprised to find contraceptive coverage.

“It’s more of a [public relations] issue than a legal issue,” said Mr. Manion, whose group is representing some of the plaintiffs.

Matt Bowman, an attorney for the Alliance Defending Freedom, which is handling or is associated with several of the for-profit cases, defended companies’ right to rethink their policies.

“The federal government is not allowed to outlaw repentance,” he said.

Complex question

The catalog of preliminary court rulings to date shows that some plaintiffs are fine with typical forms of contraception, objecting instead to drugs with an “abortifacient effect” such as the Plan B, or “morning-after,” pill that is used after conception.

Some go further. A farm operator in Michigan cited as binding on his conscience Catholic teaching against all forms of contraception, reiterated in the 1968 encyclical Humanae Vitae by Pope Paul VI, which stated that attempts to prevent procreation “before, at the moment of, or after sexual intercourse” amount to a “grave sin.”

Some of the highest-profile cases include Tyndale House Publishers and Mardel — an affiliate of Oklahoma City-based crafts supplier Hobby Lobby — both of which distribute Christian books or supplies.

The Obama administration this week appealed a district court judge’s ruling granting Tyndale a preliminary injunction against the contraceptive insurance mandate.

Their involvement raises the question of whether corporations with clear religious bents have stronger cases than, say, a general contractor. The injunction granted by District Judge Reggie Walton applied only to Tyndale.

Mr. Jost said it is a complex question that the court may have to sort out among the cases from for-profit entities, since opting to work for a corporation whose owners have deeply held beliefs is less apparent than going to work for a hospital or school with a religious affiliation.

“I do that with my eyes open,” he said of the latter case, “and I realize there’s going to be a crucifix in my classroom or something like that.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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