“President Obama, with his health secretary, Kathleen Sebelius, offering a compromise on the contraception mandate last year.”
Published: January 26, 2013
“In a flood of lawsuits, Roman Catholics, evangelicals and Mennonites are challenging a provision in the new health care lawthat requires employers to cover birth control in employee health plans — a high-stakes clash between religious freedom and health care access that appears headed to the Supreme Court.
In recent months, federal courts have seen dozens of lawsuits brought not only by religious institutions like Catholic dioceses but also by private employers ranging from a pizza mogul to produce transporters who say the government is forcing them to violate core tenets of their faith. Some have been turned away by judges convinced that access to contraceptionis a vital health need and a compelling state interest. Others have been told that their beliefs appear to outweigh any state interest and that they may hold off complying with the law until their cases have been judged. New suits are filed nearly weekly.
“This is highly likely to end up at the Supreme Court,” said Douglas Laycock, a law professor at the University of Virginia and one of the country’s top scholars on church-state conflicts. “There are so many cases, and we are already getting strong disagreements among the circuit courts.”
President Obama’s health care law, known as the Affordable Care Act, was the most fought-over piece of legislation in his first term and was the focus of a highly contentious Supreme Court decision last year that found it to be constitutional.
But a provision requiring the full coverage of contraception remains a matter of fierce controversy. The law says that companies must fully cover all “contraceptive methods and sterilization procedures” approved by the Food and Drug Administration, including “morning-after pills” and intrauterine devices whose effects some contend are akin toabortion.
As applied by the Health and Human Services Department, the law offers an exemption for “religious employers,” meaning those who meet a four-part test: that their purpose is to inculcate religious values, that they primarily employ and serve people who share their religious tenets, and that they are nonprofit groups under federal tax law.
But many institutions, including religious schools and colleges, do not meet those criteria because they employ and teach members of other religions and have a broader purpose than inculcating religious values.
“We represent a Catholic college founded by Benedictine monks,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which has brought a number of the cases to court. “They don’t qualify as a house of worship and don’t turn away people in hiring or as students because they are not Catholic.”
In that case, involving Belmont Abbey College in North Carolina, a federal appeals court panel in Washington told the college last month that it could hold off on complying with the law while the federal government works on a promised exemption for religiously-affiliated institutions. The court told the government that it wanted an update by mid-February.
Defenders of the provision say employers may not be permitted to impose their views on employees, especially when something so central as health care is concerned.
“Ninety-nine percent of women use contraceptives at some time in their lives,” said Judy Waxman, a vice president of the National Women’s Law Center, which filed a brief supporting the government in one of the cases. “There is a strong and legitimate government interest because it affects the health of women and babies.”
She added, referring to the Centers for Disease Control and Prevention, “Contraception was declared by the C.D.C. to be one of the 10 greatest public health achievements of the 20th century.”
Officials at the Justice Department and the Health and Human Services Department declined to comment, saying the cases were pending.
A compromise for religious institutions may be worked out. The government hopes that by placing the burden on insurance companies rather than on the organizations, the objections will be overcome. Even more challenging cases involve private companies run by people who reject all or many forms of contraception.
The Alliance Defending Freedom — like Becket, a conservative group — has brought a case on behalf of Hercules Industries, a company in Denver that makes sheet metal products. It was granted an injunction by a judge in Colorado who said the religious values of the family owners were infringed by the law.
“Two-thirds of the cases have had injunctions against Obamacare, and most are headed to courts of appeals,” said Matt Bowman, senior legal counsel for the alliance. “It is clear that a substantial number of these cases will vindicate religious freedom over Obamacare. But it seems likely that the Supreme Court will ultimately resolve the dispute.”
The timing of these cases remains in flux. Half a dozen will probably be argued by this summer, perhaps in time for inclusion on the Supreme Court’s docket next term. So far, two- and three-judge panels on four federal appeals courts have weighed in, granting some injunctions while denying others.
One of the biggest cases involves Hobby Lobby, which started as a picture framing shop in an Oklahoma City garage with $600 and is now one of the country’s largest arts and crafts retailers, with more than 500 stores in 41 states.
David Green, the company’s founder, is an evangelical Christian who says he runs his company on biblical principles, including closing on Sunday so employees can be with their families, paying nearly double the minimum wage and providing employees with comprehensive health insurance.
Mr. Green does not object to covering contraception but considers morning-after pills to be abortion-inducing and therefore wrong.
“Our family is now being forced to choose between following the laws of the land that we love or maintaining the religious beliefs that have made our business successful and have supported our family and thousands of our employees and their families,” Mr. Green said in a statement. “We simply cannot abandon our religious beliefs to comply with this mandate.”
The United States Court of Appeals for the 10th Circuit last month turned down his family’s request for a preliminary injunction, but the company has found a legal way to delay compliance for some months.
These cases pit the First Amendment and a religious liberty law against the central domestic policy of the Obama administration, likely affecting many tens of thousands of employees. The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and much attention has been focused in the past two decades on the issue of “free exercise,” meaning preventing governmental interference with religious practices.
Free-exercise cases in recent years have been about the practices of small groups — the use of a hallucinogen by a religious group, for example — rather than something as central as the Affordable Care Act.
The cases also test the contours of a 1993 law known as the Religious Freedom Restoration Act. The law prohibits the federal government from imposing a “substantial burden” on any religious practice without a “compelling state interest.” The burden must also be the least restrictive possible.
Professor Laycock of the University of Virginia said: “The burden is clear especially for religious organizations, which ought to be able to run themselves in accordance with their religious teachings. They are being asked to pay for medications they view as evil.” He added that because the health care law had many exceptions, including for very small companies, the government might find it hard to convince the courts that contraception coverage is, in fact, a compelling interest.
But William Marshall, a First Amendment scholar at the University of North Carolina Law School, said the Supreme Court asserted in a 1990 opinion by Justice Antonin Scaliathat religious groups had a big burden in overcoming “a valid and neutral law of general applicability.”
“You could have an objection of conscience to anything the government wants you to do — pay taxes because they will go to war or to capital punishment, or having your picture on your driver’s license,” Mr. Marshall said. “The court has made clear that religious groups have no broad right for such exceptions.”
Mr. Laycock said that while judges are supposed to be neutral, they too can get caught up in the culture wars. Judges sympathetic to women’s sexual autonomy would probably come down on one side of the dispute, and those more concerned with religious liberty on the other, he said.
“There is a lot of political freight on this issue,” he said.”