ACA Contraception Mandate Spurs Litigation Onslaught

Religious groups sue as insurance deadline nears.

, The National Law Journal

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Demonstrators at a
Demonstrators at a "Stand Up for Religious Freedom" rally

As the U.S. Supreme Court considers whether to hear a challenge to the Affordable Care Act's contraception mandate, religious groups and employers are blanketing courts with suits that claim the provision is unconstitutional.

The groups argue the mandate violates their religious beliefs by requiring them to provide their employees with health insurance plans that pay for birth control. Religious charities, universities, Christian-owned businesses and others have filed 75 suits across the country against the U.S. Department of Health and Human Services challenging the requirement, according to the Becket Fund for Religious Liberty. The organization represents plaintiffs in 10 cases.

Lawyers say that even more cases are likely. Many companies "are looking at [insurance] plan-years that start Jan. 1, so they're going to have to make a decision," said Lori Windham, senior counsel at the 13-lawyer Becket Fund, which represents plaintiffs of all faiths pro bono.

"Either they're going to comply Jan. 1 or they're going to pay some very large fines, so one reason you see so many cases is that they have to get relief quickly," she said. "They can't afford to wait around and see what the courts decide."

In the latest case, nonprofit Roman Catholic broadcaster Eternal Word Television Inc. filed suit on Oct. 28 in U.S. District Court for the Southern District of Alabama. The Becket Fund is litigating the case, and the state of Alabama has joined as co-plaintiff. "We do not believe that contraception, voluntary sterilization and abortion-inducing drugs constitute health care," Eternal's chairman, Michael Warsaw, said in a written statement. "We simply cannot facilitate these immoral practices."

Jones Day, also working pro bono, filed 16 cases on behalf of Catholic dioceses, schools and charities across the country. Firm partners working on the cases include Noel Francisco, who leads the government-regulation practice; Paul Pohl, head of the business and tort litigation practice; and Charles Carberry, co-chairman of the corporate criminal investigations practice. The firm declined to comment.

Christian public interest law groups the Thomas More Law Center and the Alliance Defending Freedom have brought about two dozen suits, arguing that the law violates the Religious Freedom Restoration Act and the First Amendment. In addition, the American Center for Law and Justice, led by Supreme Court advocate Jay Sekulow, has filed least seven suits.

Under the Affordable Care Act, employer-sponsored health care plans must cover the entire cost of contraceptives approved by the U.S. Food and Drug Administration, although churches and other houses of worship are exempt. The fine for failure to comply is $100 per day per employee.

Three petitions for review are now before the Supreme Court, each brought by private companies that object to some or all forms of contraception on religious grounds.

EXERCISE OF RELIGION

One of them is by Pennsylvania cabinet maker Conestoga Wood Specialties Corp., owned by a Mennonite family. The company lost, 2-1, before the U.S. Court of Appeals for the Third Circuit in July. The majority found that a for-profit corporation cannot engage in the exercise of religion under the First Amendment. There's the obvious reason — corporations don't pray or go to church. "We do not see how a for-profit 'artificial being' … that was created to make money could exercise such an inherently 'human' right," Judge Robert Cowen wrote for the majority.

The corporation's owners can do so, of course, but the owners aren't the same as the corporation. When the owners decided to incorporate, they created "a distinct legal entity that has legally distinct rights," Cowen wrote.

Likewise, Michigan manufacturer Autocam Corp. lost before the Sixth Circuit in September. "We agree with the government that Autocam is not a 'person' capable of 'religious exercise,' " the unanimous panel found.

The most fully litigated case — and perhaps the one with the best shot at Supreme Court review — is the Becket Fund's on behalf of the owners of craft chain Hobby Lobby Stores Inc., which has 13,000 full-time employees, and Christian bookstore chain Mardel Inc.

What's being said

  • Tired of the Whining

    Well put, Are you kidding me?. "Tens of thousands of women" will have to walk across the street to another store. The horror! Shut your mouths and quit trying to make something out of nothing.

  • Are you kidding me?

    I am beyond sick and tired of hearing how these companies are denying tens of thousands of women access to contraception - NO THEY ARE NOT. They are simply saying they shouldn't have to pay for it. These "tens of thousands of women" can still go get the contraceptions, just go get them elsewhere.

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