It’s fairly rare for news of the HHS mandate to make it into the mainstream media. And, unfortunately, the mandate is often described as the “Contraceptive” mandate. But this Politico.com piece is actually pretty balanced, and is a good summary. I’ll post the entire piece here. Note the lead-in: “war on religious employers”
Obamacare’s many contraception lawsuits
By: Kathryn Smith
November 28, 2012 04:39 AM EST
War on women — meet war on religious employers.
The first battle played out in the voting booth.
The second is unfolding in the courts — and the Supreme Court may eventually weigh in on questions about constitutionally protected religious freedom, the public good and whether secular corporations can be, as one judge put it, the “alter ego” of their religious owners.
Dozens of lawsuits have been filed in protest of the Obama administration’s policy that most employers include no-cost coverage of FDA-approved prescription contraceptives in health plans.
Churches and some — not all — religious organizations are exempt. But more than three dozen for-profit and nonprofit organizations have gone to court, citing religious objections to the birth control coverage rule, which itself is part of the women’s health provisions in the controversial health law. The suits only affect this section of the law and wouldn’t affect the rest of Obamacare — except by keeping some of the opponents all fired up.
Here’s a rundown on who is suing — and the big legal issues at stake.
For-profit companies have challenged the provision on religious liberty grounds.
In three cases so far, district court judges in Colorado, Michigan and Washington, D.C., have issued preliminary injunctions. That doesn’t overturn the law, or spell out a complete legal victory. But the injunctions temporarily halt enforcement for a specific company — and recognize the plaintiff is raising legitimate questions that deserve a day in court. These involved an HVAC company, a seller of outdoor power equipment and a Bible publisher.
But not all the judges have agreed. Plaintiffs in Oklahoma have been denied a preliminary injunction. And one district court judge in Missouri last month dismissed not just the request for a temporary injunction but the whole case.
The second category of plaintiffs are religiously affiliated entities — schools, universities and dioceses. This week, the Supreme Court gave the go-ahead for the 4th Circuit to reconsider a broad challenge to several parts of the health law, including the contraception rules, brought by Liberty University.
But some of these suits have been tossed out as “unripe” or denied an injunction because they are temporarily exempt from the contraception coverage rule. That’s because the Obama administration gave itself until next August to refine the exemption policy. Churches and some religious organizations already are exempt. But so far, a compromise has not been reached for religiously affiliated employers, who say they may still have to indirectly pay for coverage. But the courts say it’s premature for them to weigh in.
Here’s a look at some of the legal issues in the cases so far.
Can a business exercise religion?
The government argues: absolutely not. A for-profit company can’t exercise religion — and therefore, the contraception rule presents no “substantial burden” on religious exercise.
But the challengers counter: Who says businesses can’t be religious? They point out that no law says a corporation can’t exercise religion. And if businesses can exercise a First Amendment right under the Supreme Court’s Citizens United campaign donation decision, why can’t they exercise religious rights too?
So far, only one judge has addressed this question directly. In a Nov. 19 ruling, Judge Joe Heaton of the U.S. District Court for the Western District of Oklahoma denied a preliminary injunction request from the Hobby Lobby chain of craft stores.
“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously motivated actions separate and apart from the intention and direction of their individual actors,” he wrote. Hobby Lobby hasappealed the injunction decision.
Other judges have steered clear of the issue so far.
“Judges are a little bit reluctant to take that on because it’s a tough question. The law is really pretty unclear on this, as to whether a for-profit entity could have religious beliefs,” said Julianna Gonen, acting director of government relations for the Center for Reproductive Rights.
And some judges have asked: Are there different types of corporations? Some that can exercise religion and some that cannot?
Case in point: Tyndale House Publishers, a closely held company that prints Bibles and donates most of its profit to charity. In his ruling granting a preliminary injunction, Judge Reggie B. Walton of the U.S. District Court for the District of Columbia found that Tyndale House owners could sue on behalf of their company because of its unusual structure. “When the beliefs of a closely held corporation and its owners are inseparable, the corporation should be deemed the alter-ego of its owners for religious purposes,” Walton wrote.
Is mandatory contraception coverage a “substantial burden” on practicing religion?
Catholic challengers say offering contraception violates a clear, consistent and deeply held belief system. Evangelical challengers say that they’re not opposed to all contraception — but oppose emergency contraception or any form that they believe causes early abortions.
And both of those challengers say they either have to violate their own beliefs — or pay crippling fines for flouting the contraception law. Hobby Lobby said its fines could amount to $1.3 million per day.
Judges have split on this in the handful of early rulings, most regarding preliminary injunctions.
For instance, Walton called the pressure on the plaintiffs to violate their beliefs “unmistakable” and found there was a substantial burden. But Judge Carol E. Jackson of the Eastern District of Missouri didn’t. She said the contraception rule still allows plaintiff Frank O’Brien, who owns a company that mines and distributes refractory and ceramic materials, to practice religion, just not through his for-profit, secular business.
“Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as Communion,” Jackson wrote. “Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.” O’Brien has appealed.
Body or soul? Women’s health versus free exercise of religion
Under the federal Religious Freedom Restoration Act, the government is allowed to impose a substantial burden on religious practice if it can prove it has a “compelling interest” — and it furthers that interest in the least restrictive way possible.
“The government’s view is that [the rule] meets two compelling interests: One is in women’s health and the other is women’s equality,” Gonen said.
But will those arguments satisfy the standard set by the religious freedom act?
“There’s no question that [the statute] sets a high standard, and there’s no question so far that courts, especially the Supreme Court, have read that statute so that it has teeth,” Melissa Rogers, director of the Center for Religion and Public Affairs at Wake Forest University, said.
And some judges have said that by not applying the contraception policy across the board — “grandfathering” some health plans out of it, exempting some religious groups, giving others a reprieve for a year — the government is actually hurting its own legal arguments, and all those exceptions do on some level acknowledge the legitimacy of the religious argument.
“The government has exempted over 190 million health plan participants and beneficiaries from the preventive care coverage mandate; this massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to plaintiffs,” Judge John L. Kane of the District Court of Colorado wrote in his ruling for an injunction for Hercules Industries, an HVAC distributor and manufacturer in Colorado. The government has appealed the injunction.
Supporters of the rule say grandfathering plans is an administrative mechanism for implementing a law, not a “massive exemption.”
“The courts have held that if you have a narrow exception for certain religious organizations, that does not undercut the principle that everybody else has to participate,” said Judy Waxman, vice president for health and reproductive rights at the National Women’s Law Center, citing two cases in New York and California in which state laws requiring contraceptive coverage were upheld.
Can the administration find a compromise — and make the lawsuits go away?
If the government does find a compromise that satisfies religiously affiliated nonprofit groups, that could render a majority of the cases from those groups moot.
But those on both sides doubt the government will be able to accommodate private companies. It’s particularly challenging for those who “self-insure” — where an insurer runs the health plan but all the bills actually come out of the employer’s pocket. So those cases aren’t likely to go away anytime soon.
“Business clients, I think, are holding out no hope whatsoever that the accommodation will do anything for them,” Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, said.
Gonen agreed. “The legal issues that we’ve been talking about so far are going to still remain live,” she said.
And given the number of cases — and the likelihood that the courts will continue to interpret then differently — there’s a good chance the Supreme Court will have the final word.
Jennifer Haberkorn contributed to this report.
© 2012 POLITICO LLC