Obama birth control mandates unleash lawsuits
BY RACHEL ZOLL Associated Press
Sunday, January 27, 2013
1/27/13 at 5:54 AM
NEW YORK - The legal challenges over religious freedom and the birth control coverage requirement in President Barack Obama's health-care overhaul appear to be moving toward the U.S. Supreme Court.
Faith-affiliated charities, hospitals and universities have filed dozens of lawsuits against the mandate, which requires employers to provide insurance that covers contraception for free. However, many for-profit business owners are also suing, claiming a violation of their religious beliefs.
The religious lawsuits have largely stalled, as the Department of Health and Human Services tries to develop an accommodation for faith groups. However, no such offer will be made to individual business owners. And their lawsuits are yielding conflicting rulings in appeals courts around the country.
"The circuits have split. You're getting different, conflicting interpretations of law, so the line of cases will have to go to the Supreme Court," said Carl Esbeck, a professor at the University of Missouri Law School who specializes in religious liberty issues.
Under the requirement, most employers, including faith-affiliated hospitals and nonprofits, have to provide health insurance that includes artificial contraception, including sterilization, as a free preventive service. The goal, in part, is to help women space pregnancies as a way to promote health.
Religious groups who employ and serve people of their own faith - such as churches - are exempt. But other religiously affiliated groups, such as Catholic Charities, must comply.
Roman Catholic bishops, evangelicals and some religious leaders who have generally been supportive of Obama's policies have lobbied for a broader exemption.
Obama promised to change the birth control requirement so insurance companies and not faith-affiliated employers would pay for the coverage, but religious leaders said more changes were needed to make the plan work.
At the center of the cases is the Religious Freedom Restoration Act, the 1993 law that bars the government from imposing a substantial burden on the exercise of religion for anything other than a compelling government interest pursued in the least restrictive way. The question of how or whether these criteria apply when owners of for-profit businesses have a religious objection to a government policy hasn't been fully tested.
In the lawsuits from faith-affiliated groups, judges around the country have generally said it would be premature to decide the legal issues until the federal rule for religiously affiliated organizations is finalized.
In the cases involving business owners, judges have granted temporary injunctions to businesses in nine of 14 cases they've heard, while questions about for-profit employers and religious rights are decided, according to a tally by the Becket Fund.
In a case brought by Cyril and Jane Korte, Catholic owners of Korte & Luitjohan Contractors in Illinois, a three-judge panel granted a temporary injunction, ruling 2-1 that providing employees insurance coverage that includes birth control would violate the Kortes' faith.
The dissenting judge argued that the company will not be paying directly for contraception but instead will purchase insurance that covers a wide range of health care that could include birth control.
Similar reasoning was used by courts denying an injunction requested by the arts and crafts chain Hobby Lobby and religious book-seller Mardel Inc., which are owned by the same evangelical family. Oklahoma-based Hobby Lobby calls itself a "biblically founded business" and is closed on Sundays.
The U.S. district judge who first considered the request said, "Hobby Lobby and Mardel are not religious organizations."
"Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion," the ruling said.