Under the U.S. Supreme Court: Contraception mandate reaches justices

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer
Then Supreme Court nominee Sonia Sotomayor appears before the Senate Judiciary Committee during the fourth day of her confirmation hearing on Capitol Hill in Washington on July 16, 2009. -- UPI/Kevin Dietsch | <a href="/News_Photos/lp/f7aed320fc1ab2dbb00d54d1ddf6a090/" target="_blank">License Photo</a>
Then Supreme Court nominee Sonia Sotomayor appears before the Senate Judiciary Committee during the fourth day of her confirmation hearing on Capitol Hill in Washington on July 16, 2009. -- UPI/Kevin Dietsch | License Photo

WASHINGTON, Sept. 29 (UPI) -- The bruising fight in Congress over President Obama's Affordable Care Act -- Obamacare -- may spill over into the U.S. Supreme Court where a challenge to the act's contraception mandate is finally on the horizon.

The odds are good the justices will rule on the challenge late in the new term, which begins on the first Monday in October.


The Obama administration, which filed its own petition to the Supreme Court, says contraception insurance coverage is a basic right for women in the United States, where nearly half of all pregnancies are unplanned. Some business owners say providing contraception coverage violates their consciences and religious rights.

Churches, their "integrated auxiliaries," and conventions or associations of houses of worship are exempted from having to provide their employees with the 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 it.


The White House has posted a white paper online breaking down the mandate, which begins Jan. 1:

-- 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."

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-- 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."

The latest petition to reach the high court is from the Obama administration asking for review of a lower-court ruling. The appeals court decision allows Oklahoma City-based owners of for-profit businesses, who say they have moral objections, to reject contraception insurance coverage for their women employees and escape the heavy fines levied for not doing so.


The justices tend to grant review when the U.S. solicitor general asks for it.

Even more important, there is a split among the U.S. appeals courts on the issue, one of several prime criteria for Supreme Court review. More than 40 suits have been filed so far against the mandate across the country by for-profit businesses whose owners say they can't support contraception.

The American Civil Liberties Union, which keeps tabs on the fight, points out two of the three major challenges to the contraception mandate have failed so far.

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The 6th U.S. Circuit Court of Appeals based in Cincinnati rejected a request from a company, which filed suit in Michigan, seeking protections from the mandate. Lawyers for the company said they would ask the Supreme Court for review.

The 3rd U.S. Circuit Court of Appeals headquartered in Philadelphia ruled against a Pennsylvania furniture maker, owned by Mennonites, also seeking such protection. The appeals court said the company challenge was unlikely to succeed.

But the 10th U.S. Circuit Court of Appeals based in Denver ruled for two Oklahoma companies, Hobby Lobby, an arts supply chain, and Mardel, a Christian bookstore chain. Both companies are secular, for-profit entities.

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"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 Greens are Baptists.

The U.S. Supreme Court last December refused to issue the Greens an emergency stay of the mandate, with Justice Sonia Sotomayor, who oversees the 10th Circuit, saying the stores don't meet the extremely high standards required for an emergency injunction, but "may continue their challenge to the regulations in the lower courts."

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

The full 10th Circuit earlier heard the case and issued its ruling in favor of the owners.

"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."

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The July 1 date has since been postponed by the administration to Jan. 1.

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


So-called morning after pills are actually taken immediately after intercourse to disrupt fertilization or ovulation.

"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 appeals court majority agreed the businesses were likely to win on the merits, though the judges agreed or disagreed with bits and pieces of the opinion.

Earlier this month, the administration filed its own petition to the U.S. Supreme Court asking for review of the Hobby Lobby ruling.

The administration petition points out Hobby Lobby actually supplied contraception coverage for its employees until the mandate was issued -- then suddenly reversed itself for Obamacare in a corporate version of "oops."

"'[T]he Greens believe that human life begins at conception,' that is, 'when sperm fertilizes an egg,' and they therefore oppose certain contraceptives on the ground that they prevent implantation of a fertilized egg," the administration petition said.

"After learning about the contraceptive-coverage requirement, Hobby Lobby 're-examined its insurance policies,' discovered that they already covered certain [Food and Drug Administration]-approved contraceptives to which the Greens objected, and proceeded to exclude those contraceptives from the Hobby Lobby plan."


In a rundown of what the Affordable Care Act requires, the administration said Congress was responding "to a legislative record showing that 'women have different health needs than men, and these needs often generate additional costs." Women "'of childbearing age spend 68 percent more in out-of-pocket healthcare costs than men.'"

And "women often find that co-payments and other cost sharing for important preventive services 'are so high that they avoid getting [the services] in the first place.'"

In forming guidelines for the federal act, the Department of Health and Human Services went to the Institute of Medicine, part of the National Academy of Sciences, "a 'semi-private' organization Congress established 'for the explicit purpose of furnishing advice to the government.'"

Among other preventive measures, the institute "recommended coverage for the 'full range' of 'contraceptive methods' approved by the Food and Drug Administration, as well as 'sterilization procedures' and 'patient education and counseling for all women with reproductive capacity,'" the administration said.

"FDA-approved contraceptive methods include oral contraceptive pills, diaphragms, injections and implants, emergency contraceptive drugs and intrauterine devices. ... In making that recommendation, the Institute noted that nearly half of all pregnancies in the United States are unintended and that unintended pregnancies have adverse health consequences for both mothers and children."


The administration petition asks the justices to consider the following question: "The Religious Freedom Restoration Act of 1993 ... provides that the government 'shall not substantially burden a person's exercise of religion' unless that burden is the least restrictive means to further a compelling governmental interest. ... The question presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation's owners."

In language that probably will be echoed if and when the administration argues the case before the Supreme Court, the petition said the divided opinion in the appeals court "warrants review by this [Supreme] Court. The [appeals] court did not cite [and the government is not aware of] any other decision of this [Supreme] Court or a court of appeals that has ever accepted a claim that RFRA enables a for-profit corporate employer to exempt itself from generally applicable employment regulations."

The petition adds: "RFRA provides that the federal government 'shall not substantially burden a person's exercise of religion' unless application of that burden is 'the least restrictive means of furthering [a] compelling governmental interest,' and [Hobby Lobby and Mardel's] challenge to the contraceptive-coverage requirement fails to satisfy this statutory standard in multiple respects. First, the for-profit corporate respondents are not 'person[s] exercis[ing] religion' within the meaning of RFRA. ... Second, there is no indication that Congress, in enacting RFRA, intended to disregard fundamental tenets of corporate law that distinguish between the rights and responsibilities of a corporation and those of its owners. Third, the particular burden of which [the companies] complain is too attenuated to be 'substantial.' ... Finally, even if [the companies] could surmount those threshold obstacles, their claim would fail because the contraceptive-coverage requirement is the least restrictive means of advancing compelling governmental interests. ...


"The court of appeals erred by deeming the ... corporations to be 'persons' engaged in the 'exercise of religion' within the meaning of RFRA."

The administration petition then brought out the big guns, arguing: "The court of appeals held that the religious beliefs of the Greens [which the court imputed to the corporations] trump the rights of the corporations' 13,000 full-time employees and their family members to receive the health coverage to which they are entitled by federal law. The [appeals court] majority found it unremarkable that, under its interpretation of RFRA, for-profit corporations could obtain religious exemptions that come 'at the expense of their employees.'

"The majority dismissed that concern by declaring that '[a]ccommodations for religion frequently operate by lifting a burden from the accommodated party and placing it elsewhere.'"

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