- The Washington Times - Monday, March 25, 2013

A federal judge has rejected a Michigan company’s urgent plea for protection from the contraception mandate in President Obama’s health-care law, noting that a corporation’s rights are not always the same as an individual’s.

Yet a different judge in the same U.S. District Court for the Eastern District of Michigan took a starkly different approach less than two weeks ago in granting a similar request — although not on an emergency basis — from another corporation. In that ruling, the judge evoked the 2010 Citizens United Supreme Court decision that reiterated that corporations have First Amendment speech rights.

The starkly divergent opinions reflect a broad judicial split on whether corporations may be insulated — at least for now — from a clause in the Affordable Care Act that requires many employers to insure contraception at no cost.

Splits at the district court level are typically resolved by the circuit courts, said I. Glenn Cohen, a health policy expert at Harvard Law School.

“That said, the fact that the two [in Michigan] happened in such quick succession — and in more general the number of variant decisions across the country on the subject — suggest it will have a decent chance of piquing the Supreme Court’s interest,” he said.

Dozens of religious nonprofits and more than 20 corporations have sued the Obama administration over the mandate. In court filings, the plaintiffs particularly object to covering morning-after pills, which they equate with abortion.

They have the support of conservatives in Congress, who say employers should be free to exercise their religious views and that Mr. Obama did not go far enough in his February proposal to put up a firewall between religious nonprofits and their employees’ contraception coverage.

In Michigan, Judge Denise Page Hood ruled Friday that Eden Foods, a corporation whose owners conduct business in line with Catholic teaching, did not make a sufficient case in seeking immediate protection from the mandate.

“An incorporation’s basic purpose is to create a legal entity, with legal rights, obligations, powers, and privileges different from those of natural individuals who created it, who own it, or whom it employs,” she wrote.

Eden Foods is among six corporations that have been denied an injunction or temporary restraining order from the mandate, although 14 corporations have won provisional relief from various district and circuit courts, according to a decision-tracker from the Becket Fund for Religious Liberty.

Earlier this month, an order from the same district court shielded Thomas Monaghan’s Domino’s Farms office campus from the mandate. In harkening back to the Citizens United decision, he suggested that if a corporation can have free speech rights, then it can also have a religious viewpoint.

Opponents of the mandate say it violates their First Amendment rights and the Religious Freedom Restoration Act, a 1993 law designed to protect Americans from laws that overly burden their exercise of religion.

But supporters of the mandate say nonprofits and secular companies are not allowed to impose their religious beliefs on their employees, and business owners would be loath to link their personal identities with their corporations if they were, say, being sued for a tort claim.

Erin Mersino, an attorney at the Thomas More Law Center who is handling the Eden case and others, noted that Friday’s review was limited in scope and performed on an emergency basis.

While the opinion showed “a potential propensity to diverge from two prior opinions ruling to enjoin the mandate in the very same district court,” she said in an email, “we hope that once the matter is fully briefed that the judge rules in favor of protecting constitutional rights and not in favor of eroding our freedom under the First Amendment.”

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

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