Even with so much attention focused on the Oct. 1 launch of the health law’s state insurance exchanges, one of the Affordable Care Act’s most controversial elements is still percolating through the nation’s legal system. The Department of Health and Human Services regulation requiring that many companies — including religious ones — with more than 50 employees provide health insurance coverage for birth control, the “Plan B” pill and other forms of contraception for women is still being actively disputed in federal courts. There have been dozens of pending and dropped challenges — the National Women’s Law Center counts 77 and the Becket Fund for Religious Liberty is tracking 67 — in which for-profit and nonprofit organizations maintain the requirement is counter to their personal or institutional religious views.
Churches immediately qualified for an exemption in the law. But religiously affiliated hospitals, universities and other institutions often were not able to meet all of the three required conditions: they had to prove that their main purpose is to teach others about religion, and that their employees and the people they serve share the same beliefs. For example, the hundreds of Catholic hospitals serve patients of all religions.
HHS, however, finalized a compromise for these groups June 28, in a so-called “Safe Harbor” rule that outlined how they could avoid directly providing contraception coverage. Employees and their families would have access to the women’s contraceptive coverage, but the price tag would be borne not by employers with religious objections but by their insurance companies. Some organizations that have a religious connection still found this approach to be a violation of conscience.
With high emotions and vast implications, the cases challenging the contraception coverage mandate raise fundamental questions:
Is a company a “person” with religious liberties protected by the First Amendment and the Religious Freedom Restoration Act (RFRA)?
Are some types of contraception a form of de-facto abortion and therefore especially objectionable to some religious groups?
Should a company owner’s religious values govern its workers’ personal choices?
To help guide you through the maze of decisions, appeals and possible future directions of the lawsuits, we’ve selected some notable cases that could ultimately bring the contraception coverage requirement to the Supreme Court.
Some businesses, which do not fall under the “religious employer” exemption, are seeking relief from the contraception coverage mandate because it is against the owner’s religious beliefs. The following two cases are examples of corporate challenges currently winding their way through the court system.
- Hobby Lobby Stores, Inc. et al., v. Sebelius – U.S. District Court, 10th Circuit, in Oklahoma City, filed Sept. 12, 2012
Plaintiff: Hobby Lobby Stores, Inc., is a retail arts and crafts store based in Oklahoma City with more than 500 locations across the country. David Green, the CEO and founder, and his company are committed to “honoring the Lord in all [they] do by operating the company in a manner consistent with biblical principles,” according to the Hobby Lobby website. The Green family owns Mardel Christian & Education, also a plaintiff in the case. Hobby Lobby employs more than 13,000 full-time employees and Mardel employs 372.
Summary of the lawsuit: The Green family claims that, even though they are not a religious employer, providing health insurance coverage of certain kinds of birth control drugs or devices that, in its view, induce abortion would violate the family’s faith on a deeply personal scale. They argued the mandate violates their personal rights to freedom of religion, and that of the corporation as a person-like entity.
What’s the deal? A federal district court denied Hobby Lobby’s request for a preliminary injunction, but was overruled when the 10th Circuit Court of Appeals in Denver granted the company temporary relief from the coverage requirement and allowed the case to move forward. The court found that the Green family does have standing to assert its rights because providing coverage for particular types of birth control would go against the family’s religious beliefs. The court noted that the company would have to pay $1.3 million in fines daily for not providing coverage, deemed a “substantial” burden.
Current Status: The case is stayed until Oct. 1 — the deadline for the federal government to appeal the court’s decision to let Hobby Lobby challenge the mandate on religious grounds. The company does not have to comply with the mandate or pay penalties while the case is pending.
- Conestoga Wood Specialties Corporation v. Sebelius – U.S. District Court, 3rd Circuit, in Philadelphia, filed Dec. 4, 2012
Plaintiff: Conestoga Wood is a manufacturer of wood doors and components for kitchen cabinets based in East Earl, Penn. The company employs about 950 people and is privately held. Norman Hahn and his family, Mennonite Christians, own Conestoga.
Summary: Conestoga argued that by mandating the company provide health insurance for contraception and Plan B, its rights under the RFRA and the Constitution were violated. It cited the Supreme Court’s Citizens United court decision, which broadly construed corporations’ free speech rights, and the company argued the same applies to Freedom of Religion. The Third Circuit Court disagreed and denied the company’s request for an injunction, meaning the company has to provide the coverage or face a penalty while the lawsuit proceeds.
What’s the deal? The court ruled that there is no legal precedent to support the notion that a company has a “personal right” to the freedom to exercise religion. This runs counter to a separate court’s decision in the Hobby Lobby — issued just days before — and leads some experts to predict the issue will ultimately be resolved by the Supreme Court.
Current Status: The company petitioned the court after the July 26 3rd Circuit ruling by a three-judge panel for a rare “en banc” re-hearing of the case. The request was based on the argument that the 10th Circuit’s Hobby Lobby case was also decided en banc, meaning all the judges of the court were involved in the decision, rather than a select panel of them. The petition, however, was denied, leaving an appeal to the high court to be the plaintiff’s next step.
Other notable cases:
O’Brien v. US Dept. of Health and Human Services, U.S. Court Of Appeals, 8th Circuit, St. Louis, Mo.
Autocam Corporation et al. v. Sebelius, U.S. Court of Appeals, 6th Circuit, Cincinnati, Ohio
Gilardi v. Sebelius, U.S. District Court, Washington, D.C.
Many cases that were initially brought by churches, faith leaders or religious groups have been dismissed as a result of the Safe Harbor rule or the religious employer exception. Some faith-based organizations, though, continue to argue that designating an outside party to provide contraception coverage for their employees still violates their religious beliefs.
The Catholic Hospital Association announced in July that it is satisfied with the administration’s new rules on the mandate but many archdioceses, as well as religiously affiliated hospitals, nursing homes, community clinics and charities, are fighting the mandate.
- Roman Catholic Archdiocese of N.Y. v. Sebelius, U.S. District Court, 2nd Circuit, in Brooklyn, N.Y. – May 21, 2012
Plaintiff: The class-action case involves the archdiocese as well as numerous Catholic-affiliated organizations in New York including the Catholic Health Care System, Catholic Charities of the Diocese of Rockville Centre and the Catholic Health Services of Long Island. The New York Roman Catholic Archdiocese is one of the largest in the country.
Summary: In their 2012 court filing, the Catholic organizations made several arguments about the administration’s policy infringing on their religious freedom, including that Catholic hospitals and charities believe it is their mission to serve both Catholics and non-Catholics, which keeps them from qualifying for an exemption to the contraceptive mandate. They also argue that the mandate is contrary to Catholic doctrine, which forbids artificial interference with the creation of life, including through abortion, sterilization and contraceptives.
What’s the deal? In a statement released last July, just days after the Obama administration finalized the rules for the mandate and offered religious organizations the Safe Harbor option, Cardinal Timothy Dolan, who heads the New York archdiocese and the U.S. Conference of Bishops, issued a statement making clear the new regulations did not meet the concerns of some Catholic groups, although he said the bishops were evaluating the changes.
Eternal World Television Network v. Sebelius, U.S. District Court, 11th Circuit, Birmingham, Ala.
Priests for Life v. Sebelius, U.S. District Court, Washington, D.C.
A number of religious-affiliated colleges and universities are challenging the requirement that they provide free contraception coverage to their employees. Geneva College is the only school that won a preliminary injunction. Liberty University initially received a favorable decision only to have that decision reversed almost immediately.
- Liberty University v. Lew (formerly Liberty University v. Geithner) – U.S. Court of Appeals, 4th Circuit, Richmond, Va., 2/27/13
Plaintiff: Liberty University, in Lynchburg, Va., is the “largest Christian university in the world,” according to its website. Court documents indicate that more than 1,800 employees currently choose to participate in Liberty’s insurance plan. It maintains that providing contraception coverage would be subsidizing abortions and believes that “abortions, except where necessary to save the life of the pregnant mother, are murder and morally repugnant,” according to court documents.
Summary: Liberty University originally questioned the constitutionality of the individual and employer mandate but later amended its lawsuit to include a challenge to the contraceptive coverage requirement, too.
What’s the deal? There are numerous technicalities that derailed aspects of this lawsuit. Specifics of the case – such as the plaintiff’s failure to discuss the contraception issue upfront and their equating contraception with de-facto abortion – may be significant factors should this case go to the Supreme Court. The 4th Circuit Court of Appeals initially granted Liberty a stay from enforcement of the contraception coverage mandate, but the court then reversed itself a day later.
Current Status: For now, Liberty must comply with the birth control coverage mandate or face a penalty. The school has until early October to file its appeal, which could take the case to the high court, according to Politico.