Under the U.S. Supreme Court: The fight over contraception coverage

Cardinal Timothy Michael Dolan participates in a Mass for the election of a new pope, at St Peter's basilica on March 12, 2013 at the Vatican. Dolan leads the opposition to the Obama administration's contraception mandate. -- UPI/Stefano Spaziani
Cardinal Timothy Michael Dolan participates in a Mass for the election of a new pope, at St Peter's basilica on March 12, 2013 at the Vatican. Dolan leads the opposition to the Obama administration's contraception mandate. -- UPI/Stefano Spaziani | License Photo

WASHINGTON, July 21 (UPI) -- If ever there was a dispute destined to land within the cool marble confines of the U.S. Supreme Court, it's the bitter fight between the Obama administration on one side and the owners of for-profit businesses who say their religious beliefs should exempt them from providing insurance coverage for contraception.

Some businesses owners and institutions say the mandate violates their Christian principles. The administration says women need access to contraception or their health will suffer.


The business owners are backed by the U.S. Conference of Catholic Bishops, among others.

Both sides are hardening their positions.

The mandate is not in the language of the Affordable Care Act -- Obamacare -- but is in regulations issued by the Department of Health and Human Services implementing the act. An estimated 200 plaintiffs have filed suit challenging the mandate.


Churches, their "integrated auxiliaries," and conventions or associations of houses of worship, are exempted from having to provide their employees with contraception coverage. Religious institutions not affiliated with a house of worship, such as hospitals, charities or schools, are not exempt, but under a compromise offered by the administration do not have to pay for contraceptive coverage. Their insurers have to pay for the coverage.

Late last month, the administration said it was sticking to the mandate and compromise, and issued its "final rules."

"The final rules are very similar to the proposals we laid out several months ago to ensure that women have free contraceptive coverage while non-profit religious organizations with religious objections to contraceptive coverage do not have to contract, arrange, pay or refer for such coverage," Chiquita Brooks-LaSure, a deputy director at HHS, told reporters on a conference call, The Washington Times reported.

The delayed rule for religious schools, charities and healthcare providers now takes effect Jan. 1.

The final rules sealed an agreement the Obama administration made with non-profit religious entities, such as hospitals and universities, that object to the contraception mandate, though critics complain that the definition of non-church religious organizations is too narrow, MedPage Today reported.


Last year, the White House posted a white paper breaking down the mandate:

-- Churches and other houses of worship are exempt from the requirement to offer insurance that covers contraception.

-- "No individual healthcare provider will be forced to prescribe contraception: The president and this administration have previously and continue to express strong support for existing conscience protections. For example, no Catholic doctor is forced to write a prescription for contraception."

-- No one will be forced to buy or use contraception. The regulation applies only to what insurance companies cover. "Under this policy, women who want contraception will have access to it through their insurance without paying a co-pay or deductible."

-- "Drugs that cause abortion are not covered by this policy: Drugs like RU486 are not covered by this policy, and nothing about this policy changes the president's firm commitment to maintaining strict limitations on federal funding for abortions. No federal tax dollars are used for elective abortions."

Though opponents say so-called morning after pills, part of the mandate coverage, are abortion-inducing, they are actually taken immediately after intercourse to disrupt fertilization or ovulation.

-- More than half of Americans already live in the 28 states that require insurance companies to cover contraception: Several -- North Carolina, New York and California -- have identical religious employer exemptions. Some like Colorado, Georgia and Wisconsin have no exemption.


-- "Contraception is used by most women: According to a study by the Guttmacher Institute, most women, including 98 percent of Catholic women, have used contraception."

-- Contraception coverage reduces costs: The monthly cost of contraception for women ranges from $30 to $50, but "insurers and experts agree that savings more than offset the cost. The National Business Group on Health estimated that it would cost employers 15 to 17 percent more not to provide contraceptive coverage than to provide such coverage."

Early this month, the U.S. conference of Catholic Bishops said even with the "compromise," it has considerable trouble with the mandate.

"Although the conference has not completed its analysis of the final rule, some basic elements of the final rule have already come into focus," the National Catholic Register quoted Cardinal Timothy Dolan of New York, president of the U.S. conference, as saying.

In a statement released July 3, Dolan said the conference "has not discovered any new change that eliminates the need to continue defending our rights in Congress and the courts."

Dolan said the compromise "seems intended to strengthen the claim that objectionable items will not ultimately be paid for by the employer's premium dollars," but said that it remains "unclear whether the proposal succeeds in identifying a source of funds that is genuinely separate from the objecting employer, and if so, whether it is workable to draw from that separate source."


Dolan is also concerned about the owners of for-profit businesses who have questions of conscience about contraceptives. The cardinal said the bishops "are concerned as pastors with the freedom of the Church as a whole -- not just for the full range of its institutional forms, but also for the faithful in their daily lives -- to carry out the mission and ministry of Jesus Christ," the Register reported.

The bishops are also asking backers to write Congress in support of the Healthcare Conscience Rights Act, "a bill to amend the Patient Protection and Affordable Care Act to protect rights of conscience with regard to requirements for coverage of specific items and services, [and] to amend the Public Health Service Act to prohibit certain abortion-related discrimination in governmental activities, and for other purposes."

A high-profile challenge to the contraception mandate comes from Hobby Lobby.

"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 last year in a 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."


The U.S. Supreme Court last December refused to issue the Greens an emergency stay of the mandate, with Justice Sonia Sotomayor saying the stores don't meet extremely high standards required for an emergency injunction, but "may continue their challenge to the regulations in the lower courts."

"Following a final judgment, they may, if necessary, file a petition" for the Supreme Court to hear the case, she said.

Besides Hobby Lobby, a craft store chain, the challenge included Mardel, a Christian bookstore chain also run by the Greens. Both are headquartered in Oklahoma City.

Though they were stymied for the time being at the Supreme Court, the businesses had better luck at the appellate level.

The full 10th U.S. Circuit Court of Appeals in Denver heard the case in May and issued its ruling late last month.

"Their owners, the [Green family], run both companies as closely held family businesses and operate them according to a set of Christian principles," the opinion from the appeals court said. "They contend regulations implementing the 2010 Patient Protection and Affordable Care Act force them to violate their sincerely held religious beliefs. In particular, the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored healthcare plan."


Among the services "are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith," the opinion said.

"We hold that Hobby Lobby and Mardel are entitled to bring claims under [the federal Religious Freedom Restoration Act], have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm," the appeals court said.

A five-judge majority agreed the businesses were likely to win on the merits, though the judges agreed or disagreed with bits and pieces of the opinion.

The appeals court sent the case back to a federal judge to resolve remaining issues "governing the grant or denial of a preliminary injunction" against the mandate. The federal judge initially had rejected the companies' request for an injunction.

Without court intervention, Hobby Lobby and Mardel would have had to begin paying $1.3 million in fines each day.

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