Owners of for-profit companies say their religious convictions prohibit them from providing that type of contraceptive coverage for women employees and are in a race to beat back what they consider a violation of their religious freedom -- the Obamacare mandate that says employers must provide contraception insurance coverage for free in the new year or face enormous fines.
So-called morning after pills are actually taken immediately after intercourse to disrupt fertilization or ovulation.
"A new government healthcare mandate says that our family business must provide what I believe are abortion-causing drugs as part of our health insurance," Hobby Lobby founder David Green said in a September opinion piece in USA Today. "Being Christians, we don't pay for drugs that might cause abortions. Which means that we don't cover emergency contraception, the morning-after pill or the week-after pill. We believe doing so might end a life after the moment of conception, something that is contrary to our most important beliefs. It goes against the biblical principles on which we have run this company since Day 1. If we refuse to comply, we could face $1.3 million per day in government fines."
Stymied after a Supreme Court justice refused to issue a stay of the mandate, Hobby Lobby said it was carrying on the battle. The company announced through attorneys late last Thursday it would "continue to provide health insurance to all qualified employees. To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs," CNN reported.
In another case, a federal appeals court has granted a stay of the contraception mandate for a Highland, Ill, for-profit company based on its owners' religious convictions.
"Cyril and Jane Korte own K & L Contractors, a construction firm with approximately 90-full]time employees," an appeals court panel said in a 2-1 opinion. "About 70 of their employees belong to a union, which sponsors their health]insurance plan; K & L Contractors provides a group health]insurance plan for the remaining 20 nonunion employees.
"The Kortes are Roman Catholic, and they seek to manage their company in a manner consistent with their Catholic faith, including its teachings regarding the sanctity of human life, abortion, contraception, and sterilization," the panel said. "In August 2012 they discovered that the company's current health insurance plan includes coverage for contraception. The plan renewal date is Jan. 1."
The panel said the Kortes "want to terminate this coverage and substitute a health plan (or a plan of self insurance) that conforms to the requirements of their faith. The ACA's preventive care provision and implementing regulations prohibit them from doing so."
The federal Religious Freedom Restoration Act of 1993 "prohibits the federal government from imposing a substantial burden [on] a person's exercise of religion," the appeals panel majority said, "even if the burden results from a rule of general applicability' unless the government demonstrates that the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
In contrast, the Obama administration says the contraceptive mandate is just basic preventive healthcare for millions of women.
At least 42 complaints have been filed against the contraception mandate -- mostly by hospitals and schools, but also 14 from for-profit companies -- The Becket Fund for Religious Liberty said in Washington. The fund is representing Hobby Lobby in a case that reached the Supreme Court and was rejected. But the case probably will come before the high court again once it goes through the normal appeals process.
Hobby Lobby, a self-insured arts and crafts giant, was started in a garage in Oklahoma City in 1972, and now has more than 500 stores in 41 states, with 15,000 full-time employees. It's owned by the Green family, who "have said that they seek to serve God through all of their endeavors, including their business decisions," the Catholic News Agency reports.
CNA said the company "donates considerable amounts to charity, maintains a minimum wage that is much higher than the federal requirement and closes all of its stores on Sundays, sacrificing profit to allow its employees to rest and worship with their families."
In a statement posted on its website Oct. 29, the Becket Fund tried to characterize what was at stake.
"Today, the Green family -- founders and owners of the arts and crafts chain Hobby Lobby Stores and Mardel, Christian and Education stores -- filed the final brief in support of their motion for preliminary injunctive relief against" the contraception mandate, "a federal regulation that will force them, in two months, either to violate their faith by covering abortion drugs or to pay fines up to $1.3 million per day," the statement said. "In response to the Green's original motion, the government denied that plaintiffs have any rights at all. Because plaintiffs engage in what the government states is 'secular' business, the government says they cannot exercise religion, by definition."
"When the government calls Hobby Lobby 'secular' and thus incapable of exercising religion, it is wrong on the facts. It is also wrong on the law," Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, said in the statement. "The government cannot label people or organizations as 'secular' or 'religious,' and grant or withhold freedom accordingly. The law simply protects the exercise of religion -- whether the Greens practice it in their church, in their home, or in running their businesses."
But in a brief filed in response to the Hobby Lobby request for a preliminary injunction, the government said, "Plaintiffs' challenge rests largely on the theory that a for-profit, secular corporation established to sell art and craft supplies can claim to exercise religion and thereby avoid the reach of laws designed to regulate commercial activity. This cannot be."
The request for an injunction attacked "regulations that are intended to help ensure that women have access to health coverage, without cost-sharing, for certain preventive services that medical experts have deemed necessary for women's health and well-being. The preventive services coverage regulations that plaintiffs challenge require all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain recommended preventive services without cost-sharing [such as a co-payment, coinsurance or a deductible]. ... [With the exception of] non-profit religious employers [and group health insurance coverage sold in connection with those plans], the preventive services that must be covered include all Food and Drug Administration ... approved contraceptive methods, sterilization procedures and patient education and counseling for women with reproductive capacity, as prescribed by a healthcare provider."
The government also said the companies' objections came rather late to the table.
The brief said Hobby Lobby's and Mardel's objections only came after they learned of the contraception mandate debate.
"'Recently, after learning about the nationally prominent [contraception] mandate controversy, Hobby Lobby re-examined its insurance policies,' discovered that its policies covered certain contraceptive services, and proceeded to exclude those services," the government said, quoting the companies' own filings. "Plaintiffs now assert that their religious beliefs prohibit them from providing coverage for certain contraceptive services."
The government argued the companies could not show "irreparable harm" if forced to obey the mandate, "because they waited more than a year after the challenged regulations were issued before filing suit and, until recently, provided the health coverage to which they object."
In Oklahoma City, U.S. District Judge Joe Heaton, a George W. Bush appointee, said religious organizations such as churches have constitutional protection from the contraception mandate but "Hobby Lobby and Mardel are not religious organizations," Insurance Journal reported.
"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."
A federal appeals court refused to issue an injunction as well, but Hobby Lobby was not about to admit defeat.
"It is by God's grace and provision that Hobby Lobby has endured," CNA quoted David Green as saying. "Therefore we seek to honor God by operating the company in a manner consistent with biblical principles."
At this time of year there are few people in the marble halls of the Supreme Court, the Christmas tree and decorations are up and the press room is relatively empty. SCOTUSblog spotted the companies' application for an emergency stay Dec. 21.
The companies wanted the high court to block the implementation of the contraception mandate, at least for them, and to hear the case directly on appeal, without going through the appellate court.
The application went to Justice Sonia Sotomayor, who oversees the 10th U.S. Circuit, which includes Oklahoma. Sotomayor refused to refer the request to the full court for a quick vote.
The companies "do not satisfy the demanding standard for the extraordinary relief they seek. First, whatever the ultimate merits of the applicants' claims, their entitlement to relief is not 'indisputably clear,'" Sotomayor said in a four-page opinion.
The companies could have asked another justice to grant the stay, but apparently chose not to..
The case will have to go through the normal appeals process, as Sotomayor pointed out in her opinion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari [review] in this [Supreme] Court.
In that case, either the Hobby Lobby dispute, the Kortes case or one of the more than 40 others being litigated is likely to end up on the Supreme Court's plate late this term or early in the next term.