Legal Challenges to Mandated Birth Control Coverage

Supreme Court opens door to university's health care challenge
(By Pete Williams, NBC News, November 26, 2012)

With the Obama administration posing no objection, the U.S. Supreme Court today gave a Christian college in Virginia a chance to carry on its claim that the Obama health care law violates religious freedom.

Liberty University was among the first challengers of the law, arguing that two provisions violate its religious freedom -- the individual mandate and the requirement that employers provide health insurance or pay a penalty. The case was never fully developed, however, because the court of appeals for the Fourth Circuit ruled that the law could not be challenged before it went into effect. On the first time through the courts, the trial judge ruled against the school, but the appeals court said a federal law that imposes a tax cannot be challenged ahead of time.

Today's action by the Supreme Court does not mean that the justices think Liberty University is right. It simply means the court has concluded that the school should be given a chance to start over rather than leaving the question unresolved.

The Obama administration had told the court that it poses no objection to giving Liberty a shot at making its religion arguments, even though the government believes "those claims lack merit."

Legal Challenges to ACA Not Quite Finished
(John LeBlanc, JDsupra.com, November 26, 2012)

If you thought that the legal battle over the constitutionality of the Patient Protection and Affordable Care Act ("ACA") was put to rest in NFIB v. Sebelius, you may want to pay attention to Liberty University v. Geithner.

Today, the United States Supreme Court granted certiorari and then returned the case to the U.S. Court of Appeals for the Fourth Circuit to consider new challenges to the ACA.

In its lawsuit, among other things, Liberty University contended that the ACA violates its First Amendment religious freedoms through the funding of abortions and other practices that it maintains are at odds with the core beliefs of the school. Liberty University also challenged the so-called "employer mandate" that requires all employers employing 50 or more people to provide health coverage to those employees, or face a penalty.

The Fourth Circuit had previously held that the mandates were "taxes," but dismissed the case for lack of jurisdiction on the grounds that the federal Anti-Injunction Act did not permit the federal courts to consider the legality of the tax until it went into effect. Because it dismissed the case on jurisdictional grounds, it did not rule on the merits of the religious freedom and employer mandate arguments. Liberty University sought review in the Supreme Court, which was denied.

In NFIB v. Sebelius, the Supreme Court unanimously held that the Anti-Injunction Act did not preclude the federal courts from deciding the constitutionality of a "tax" only after it goes into effect. Liberty University therefore filed a motion for rehearing, and the Supreme Court ordered the Department of Justice to file a response. In a somewhat surprising move, the DOJ did not oppose Liberty University's motion for pre-hearing, paving the way for today's ruling from the Supreme Court.

On remand, the Fourth Circuit will now have to consider Liberty University's arguments on their merits, and its rulings could conceivably make their way back to the Supreme Court.

Hobby Lobby Appeals Morning-After Pill Decision
(By Tim Talley | Associated Press | November 27, 2012)

Hobby Lobby Stores Inc. is asking a federal appeals court to block part of the federal health care law that requires the Christian family-owned arts and crafts company to provide insurance coverage for emergency contraception pills.

The Oklahoma City-based company asked the 10th U.S. Circuit Court of Appeals to block enforcement of the law, which will require Hobby Lobby and a sister company, Mardel Inc., to cover the morning-after pill and week-after pill as part of employee health insurance plans beginning Jan. 1.

The company filed its appeal a day after a federal judge denied the request.

“There is a sense of urgency here,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which is representing Hobby Lobby.

The company, which is self-insured, has said it will face a daily $1.3 million fine beginning Jan. 1 if it ignores the law.

Hobby Lobby is the largest business to file a lawsuit against the mandate. Founded in 1972, it now operates more than 500 stores in 41 states and employs more than 13,000 full-time employees who are eligible for health insurance coverage.

Hobby Lobby sued the government in September, claiming the mandate violates the religious beliefs of its Christian owners, the Green family. The owners maintain that the morning-after and week-after pills are tantamount to abortion because they can prevent a fertilized egg from implanting in a woman’s womb. They also object to providing coverage for certain kinds of intrauterine devices.

“Appellants engage in an undisputed exercise of religion: they refrain from providing insurance coverage for abortion-inducing drugs,” Hobby Lobby’s appeal states. “Yet the government puts appellants to an impossible choice: either give up the religious exercise, or pay millions in fines.”

In ruling against the company, U.S. District Judge Joe Heaton said churches and other religious organizations have been granted constitutional protection from the birth-control provisions, but “Hobby Lobby and Mardel are not religious organizations.”

“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,” the ruling said.

But the companies’ appeal argues that members of the Green family run their businesses according to their religious faith, “and regularly engage in what can only be called exercises of religion.”

Among other things, Hobby Lobby takes out hundreds of full-page ads every Christmas and Easter celebrating the religious nature of the holidays, closes on Sundays to give employees a day of rest and excludes contraceptive devices and drugs that its owners maintain can cause abortion from its employee prescription drug coverage plan, according to the appeal.

“They exercise their personal religious faith in many ways in which that company is run,” Duncan said.

Heaton recognized that the Green family has sincere religious beliefs, but the judge ruled that complying with the new health care guidelines creates only an indirect burden on Hobby Lobby’s owners and it is not personal to them, he said.

In medical terms, pregnancy begins when a fertilized egg attaches itself to the wall of the uterus. If taken within 72 hours of unprotected sex, the morning-after pill can reduce the chances of an egg implanting in a woman’s womb by as much as 89 percent.

Critics of the contraception say it is the equivalent of an abortion pill because it can prevent a fertilized egg from attaching to the uterus. The lawsuit also alleges that certain kinds of intrauterine devices can destroy an embryo by preventing it from implanting in a woman’s uterus.

At a hearing earlier this month, a government lawyer said the drugs do not cause abortions and that the U.S. has a compelling interest in mandating insurance coverage for them.

Missouri company wins temporary reprieve from contraception mandate
(Associated Press, November 30, 2012)

A federal appeals court has issued an order temporarily blocking implementation of the contraception mandate of the federal health-care law for a Missouri business owner.

A three-judge panel of the 8th U.S. Circuit Court of Appeals granted a preliminary injunction Nov. 28 on behalf of Frank O’Brien and his company, O’Brien Industrial Holdings LLC of St. Louis.

At least three dozen suits have been filed around the country challenging the requirement that workplace health plans cover birth control. O’Brien, a devout Catholic, claimed in his suit that the requirement infringes on his religious beliefs.

U.S. District Judge Carol Jackson dismissed the suit in September, but the appeals panel halted implementation of the mandate for O’Brien’s business pending outcome of appeals of Jackson’s ruling. The one-sentence appeals panel ruling did not offer an explanation for the 2-1 decision.

“The order sends a message that the religious beliefs of employers like Frank O’Brien must be respected by the government,” said O’Brien’s attorney, Francis Manion of the American Center for Law and Justice, a religious-liberty legal organization based in Washington. “We have argued from the beginning that employers like Frank O’Brien must be able to operate their business in a manner consistent with their moral values, not the values of the government.”

The ACLJ said the order was the first decision from a federal appeals court for litigation challenging the contraception mandate.

Messages left with Michelle Bennett, attorney for the U.S. Department of Health and Human Services, were not returned. But American Civil Liberties Union attorney Anthony Rothert, who also argued on behalf of the contraception mandate, said the ruling was not unexpected.

“These are serious, weighty questions that deserve serious attention from the court of appeals, so maintaining the status quo while they decide the case is not a huge setback,” Rothert said.

O’Brien Industrial Holdings is a secular company with 87 employees engaged in mining, processing and distributing refractory and ceramic materials and products. A statue of Jesus sits in the main lobby. Its statement of values includes references to the Golden Rule and the Ten Commandments.

The original suit filed in March said the contraception mandate forces the company to make a choice between complying with the law or facing “ruinous fines that would have a crippling impact on their ability to survive economically.”

Mandatory coverage for contraception has been among the most contentious issues of the health care law. In June, demonstrators gathered on Capitol Hill and in more than 100 places around the country in opposition to the mandate.

Several states have joined a lawsuit to try and block the part of the law that requires contraception coverage. The suit argues that the rule violates the rights of employers that object to the use of contraceptives, sterilization or abortion-inducing drugs.

Administration officials have said individual decisions about whether to use birth control, and what kind, remain in the hands of women and their doctors.

NY Archdiocese Lawsuit against Healthcare Law Allowed to Proceed
(JD Journal, December 7, 2012)

On Wednesday, U.S. District Judge Brian Cogan denied a motion made by the U.S. Department of Health and Human Services which argued that the lawsuit against the healthcare law brought by the Roman Catholic Archdiocese of New York was premature.

Cogan denied the motion by the Department of Health and Human Services on the ground that the archdiocese was at the brink of incurring millions of dollars in expenses over the healthcare law requirement it was challenging.

The instant lawsuit is among several dozen brought by Catholic institutions across the country challenging the contraceptives mandate in the 2010 Affordable Care Act. The concerned provision requires private employers that offer group health plans to cover contraceptive and other services, though excluding some religious employers.

The Health Department had announced in February that it would stop enforcement of the contraceptives requirement until August 2013, providing temporary relief for concerned organizations, meanwhile using the time to develop regulations to accommodate religious objections.

However, the rule received numerous legal challenges, including the instant challenge filed in the Brooklyn federal court by the New York archdiocese and others. The New York archdiocese employs more than 10,000 people, and about 9,000 of them, including both catholic and non-catholic employees are covered by its healthcare plan.

Though the Health Department argued that it was premature for Catholic groups to bring legal challenges while the Health Department was still engaged in mulling over final regulations, Cogan wrote in his opinion, “There is no “Trust us, changes are coming” clause in the Constitution.”

The case is Roman Catholic Archdiocese of New York et al v. Sebelius, in the U.S. District Court for the Eastern District of New York, no. 12-2542.

Staten Island priest encouraged by contraception ruling: 'Sue the hell out of the Obama Administration'
(Maura Grunlund/Staten Island Advance/December 7, 2012)

STATEN ISLAND, N.Y. -- The Rev. Frank Pavone, national director of Priests for Life in New Dorp, has a battle cry, "Sue the hell out of the Obama Administration," in response to a U.S. Department of Health and Human Services mandate about contraception that is being challenged by the Archdiocese of New York.

Father Pavone described as "encouraging" a ruling on Wednesday by U.S. District Judge Brian Cogan in Brooklyn rejecting the argument of the agency that the lawsuit filed by the Archdiocese of New York was premature and should be dismissed. The leader of Priests for Life predicted that the issue, which has inspired 40 lawsuits from various religious groups, ultimately will be decided by the U.S. Supreme Court.

As reported by EWTN News, the judge said "uncertain future harms" have present effects that are sufficient to grant standing needed to challenge the federal regulation. Cogan also compared the mandate to a "speeding train that is coming toward plaintiffs" that requires them to incur present costs ahead of the mandate's implementation.

"This ruling is encouraging to Priests for Life because we have a lawsuit against the same mandate, here in the same federal court," Father Pavone said.

"The judge has recognized what we have been maintaining all along, namely, that we don't have to wait for further harm to defend ourselves now."

The federal mandate requires most employers with 50 or more workers to provide--with no co-pay-- insurance coverage for sterilization and contraceptives. Organizations that violate the federal rule, including Priests for Life, must pay fines of $100 per employee per day.

But Father Pavone also noted that different courts have issued widely divergent rulings as they take up 40 lawsuits against the mandate. Even Cogan ruled against the Diocese of Rockville Centre (L.I.) and its Catholic Charities organization in Wednesday's decision.

"The differences in these rulings suggest that the U.S. Supreme Court may have the final word on this unjust situation," Father Pavone said.

"I remain certain that the Supreme Court will have no choice but to rule in favor of religious freedom, and against this unjust mandate.

"I encourage other dioceses and ministries to jump into the fray. Don't be afraid of the battle. We should sue the hell out of the Obama Administration."

Father Pavone encouraged people to sign the "Citizens' Amicus Brief" at Priestsforlife.org.

"We are pleased that Judge Cogan has allowed the lawsuit to proceed with the Archdiocese of New York, ArchCare, and CHSLI, and we look forward to proceeding to the merits of our claims," said Joseph Zwilling, a spokesman for the Archdiocese of New York. "It is noteworthy that, with this decision, the Court has recognized that the Archdiocese of New York and other plaintiffs in this case are facing current and imminent harm from the Government's contraception coverage mandate."

Contraception Mandate Challenge Reaches Appeals Court
(by MICHELLE BAUMAN/CNA/EWTN NEWS, 12/17/2012)

The D.C. Circuit Court of Appeals has become the first federal appellate court to hear arguments surrounding the federal contraception mandate, as two religious colleges argue that their religious freedom is threatened by the rule.

“The decision from the D.C. Circuit will no doubt influence the decisions of others courts,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty.

Duncan said shortly after the Dec. 14 hearing that the ruling in the case — brought by Belmont Abbey College and Wheaton College — could have important implications for the dozens of other lawsuits challenging the mandate.

The lawsuits revolve around a federal mandate that requires employers to offer health-insurance plans covering contraception, sterilization and early abortion drugs. The mandate includes only a narrow religious exemption that applies only to nonprofit organizations that exist to inculcate religious doctrine and employ and serve primarily members of their own faith.

Most religious organizations fail to qualify for the exemption and will be faced with devastating fines if they do not comply with the regulation.

Responding to waves of protest after the mandate was initially announced, the government created a one-year “safe harbor” to delay enforcement of the rule against nonprofit religious organizations that object to it.

During this time, the government has promised to create an “accommodation” for the religious liberty of these groups. However, that process is still in its very early stages, and the initial suggestions put forth by the administration have been criticized as inadequate.

The safe harbor period will end Aug. 1, 2013, and religious organizations will be subject to the mandate after that time.

More than 110 organizations have filed lawsuits challenging the mandate for threatening their constitutional right to free exercise of religion. Plaintiffs include the Archdiocese of New York, EWTN, the University of Notre Dame and over a dozen schools of different religious affiliations, along with health groups and Catholic Charities affiliates throughout the country.

In addition, seven states and numerous for-profit businesses have filed lawsuits against the mandate, includes arts-and-crafts giant Hobby Lobby and manufacturers of products including medical equipment, auto lights and wood cupboards.

Belmont Abbey College, a Catholic liberal arts college in North Carolina, became the first plaintiff to challenge the mandate when it was initially announced in 2011. Wheaton College, an evangelical Christian liberal arts school in Illinois, filed a lawsuit in July 2012.

Both cases had previously been dismissed by lower courts as being “premature” because of the government’s promise to issue an additional accommodation.

However, a federal judge in New York issued an opposing decision in the local archdiocese’s case on Dec. 6, determining that it was mature and noting, “There is no ‘Trust us; changes are coming’ clause in the Constitution.”

The D.C. court of appeals combined the Belmont Abbey and Wheaton cases in an expedited appeal.

During the Dec. 14 oral arguments, the Becket Fund argued on behalf of the colleges, stressing that “the mandate is final” and is “currently burdening the conduct of the colleges,” said Duncan.

He explained that the budgeting and hiring decisions currently facing the schools are heavily impacted by the potentially crippling fines they could be slammed with for refusing to follow the mandate’s requirements.

In addition, he said, the safe-harbor period protects religious institutions from federal government penalties but does not prevent individuals from suing the colleges for failing to adhere to the mandate.

The government argued during the hearing that it is still working on the accommodation, Duncan continued, but it would not say “what the new rule will be” or what might be in it, suggesting only that a proposal should be expected in the first quarter of 2013. That proposal would then have to undergo another process before being finalized.

In the next few months, the appeals court will issue a decision, determining whether the lawsuit is “ripe” to proceed or if the safe harbor and government promise of an accommodation render it premature.

Duncan said that he is “encouraged” when cases are judged on their actual merits because he believes the government’s argument is weak.

An injunction has been granted to four out of five for-profit cases that have received a ruling, he pointed out.

Despite the safe harbor, he said, it is clear that the mandate is already hampering the colleges by “putting pressure on the exercise of their religious rights.”

Court: Obama must rewrite contraception mandate to accommodate religious liberty
(Joel Gehrke, The Washington Examiner, December 19, 2012)

Health and Human Services Secretary Kathleen Sebelius cannot enforce the Obamacare contraception mandate as it is written, but must follow through on a promise to rewrite the rule to accommodate religious liberty, a federal appeals court ordered.

The Obama administration “represented to the court that it would never enforce [the mandate] in its current form against the appellants or those similarly situated as regards contraceptive services,” the three judges hearing the case wrote in their order. The Obama team made that promise during oral arguments against Wheaton College and The Becket Fund for Religious Liberty, which sued over the contraception mandate but lost at the lower court level.

“There will, the government said, be a different rule for entities like the appellants . . . We take the government at its word and will hold it to it,” the judges wrote. They ruled that the Obama administration must rewrite the regulation by August 2013 and provide updates to the court every 60 days. If the government fails to do so, the lawsuits may proceed.

The court also noted that the Obama administration had not made such an expansive pledge outside the courtroom.

“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” The Becket Fund’s Kyle Duncan, who argued the case, said in a statement. “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

Supreme Court won’t stop contraception coverage
(Joel Connelly, Seattle Post-Intelligencer, December 27, 2012)

The U.S. Supreme Court has refused to temporarily halt a provision in the Affordable Care Act requiring employers to provide coverage of contraception as part of their employees’ health insurance packages.

Supreme Court Justice Sonya Sotomayor, who handles emergency appeals in states of the 10th Circuit, turned back a challenge by two businesses — Martel, a Christian bookstore chain, and Hobby Lobby stores — owned by Oklahoma City billionaire David Green. The businesses claimed that the women’s health coverage requirement violates their religious freedom.

“Applicants do not satisfy the demanding standard for the extraordinary relief they seek,” Sotomayor wrote in a four-page opinion.

Sotomayor noted that the Supreme Court has never addressed any similar freedom of religion claims brought by for-profit corporations objecting to employee benefit laws.

Although the Obama administration offered a compromise — the birth control coverage will be paid for by insurers, not employers — the contraception requirement has drawn legal challenges from conservative Catholic dioceses, religious-affiliated colleges, and some businesses.

Republicans in the U.S. Senate tried, earlier this year, to extend to all employers the right to deny various forms of health coverage (particularly birth control) on grounds of conscientious objection. The effort was defeated on a narrow 50-48 vote.

The Green-owned businesses claimed they faced “draconian fines unless they abandon their religious convictions,” and argued that certain kinds of coverage — notably the so-called “morning after” birth control pill — could be considered a form of abortion.

Sotomayor said the cases should be allowed to make their way through lower federal courts. “Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts,” wrote the justice. “Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court.”

Green is known as the “Biblical billionaire”. But one federal judge has already rebuffed his businesses’ attempt to get out of the health insurance requirement.

U.S. District Judge Joe Heaton noted that churches and religious organizations have been given constitutional protection from the birth control requirement, but that Hobby Lobby and Mardel “are not religious organizations.”

“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,” Judge Heaton wrote.

Hobby Lobby won’t offer morning-after pill
(The Associated Press, December 28, 2012)

An attorney for Hobby Lobby Stores said yesterday that the arts-and-crafts chain would defy a federal mandate requiring it to offer employees health coverage that includes access to the morning-after pill, despite risking potential fines of up to $1.3 million per day.

Hobby Lobby and religious bookseller Mardel Inc., which are owned by the same conservative Christian family, are suing to block part of the federal health-care law that requires employee health-care plans to provide insurance coverage for the morning-after pill and similar emergency-contraception pills.

The companies claim the mandate violates the religious beliefs of their owners. They say the morning-after pill is tantamount to abortion because it can prevent a fertilized egg from becoming implanted in a woman’s womb.

On Dec. 26, Supreme Court Justice Sonia Sotomayor denied the companies’ request for an injunction while their lawsuit is pending, saying the companies failed to satisfy the demanding legal standard for blocking the requirement on an emergency basis. She said the companies may still challenge the regulations in the lower courts.

Kyle Duncan, who represents Hobby Lobby on behalf of the Becket Fund for Religious Liberty, said in a statement posted on the group’s website yesterday that Hobby Lobby didn’t intend to offer its employees insurance that would cover the drug while its lawsuit is pending.

“The company will continue to provide health insurance to all qualified employees,” Duncan said. “To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs.”

In ruling against the companies last month, U.S. District Judge Joe Heaton said churches and other religious organizations have been granted constitutional protection from the birth-control provisions but that “Hobby Lobby and Mardel are not religious organizations.”

Birth control mandate appears to be in limbo
(Douglas Turner, Opinion Essay, The Buffalo News, January 7, 2013)

Last Wednesday, Jan. 2, was the day the Obama administration's rule went into effect that ordered all Catholic Church-related institutions, such as hospitals and schools, to buy health insurance that covers birth control.

The mandate was one of the most corrosive aspects of the presidential campaign. At the moment, the mandate appears to be in a state of restraint, or limbo. This would be consistent with the Obama administration's policies of gently slapping on the wrist crooked bankers and monopolistic companies like Google.

Many religious leaders hope it stays that way; but they are saying it privately.

Today, the issue that last summer inflamed the nation's Catholic bishops – with some, like Chicago Cardinal Francis George predicting they'd be “martyred in the public square” for defying it – is all shadows and nuance.

Just why President Obama pressed this mandate before a tough election is a great mystery. Health and Human Services Secretary Kathleen Sebelius may have backed him into it. She is a former militant pro-choice governor of Kansas, a Catholic who has been barred from communion by the archbishop of Kansas City.

Or, the heat generated by the Catholic bishops over contraception may have fit nicely with the Democrats' charge that Republicans were waging a war on women.

The mandate, which critics say also requires Christian organizations to buy insurance for abortifacient pills, raises serious issues of conscience for Catholics, evangelicals and traditional Christians.

Buffalo-based Catholic Health, which coordinates one of the biggest and best hospital systems in the nation, said Friday that while it approves many aspects of Obamacare, the contraception mandate “strikes directly to our right to religious freedom, which is affirmed…in the Constitution.” The mandate, Catholic Health said, is contrary to “long-standing moral teachings,” adding it stands with the bishops and others in their legal fight to overturn it. But neither has said it will disobey the mandate if it passes legal muster. The issue is headed to the Supreme Court.

St. Bonaventure University, through a spokeswoman, said it will continue to provide health insurance required by state law, which includes all prescriptions. The mandate also requires coverage for sterilization. The university had no reaction to that. Canisius College, of the Jesuit tradition but legally non-sectarian, did not respond to a request for comment.

Both sides – traditional Christians and the Obama administration – appear to be waiting for two intertwined developments. Defending against lawsuits brought to stop the mandate, the administration said it will revise the rule. One implication is that now that the election is over and the war on women defeated, the government may widen the exemption for church-related institutions. The “final” rule was posted almost a year ago. It says if an institution hires or aids any others than those of its religion, it must comply. Now, the “final, final” rule is to be posted by the end of March.

Drafting the ultimate standard may be influenced by the many suits filed against the mandate. According to one count, the Christians have won six and the lions three. Just before Christmas – pardon me, “the holidays” - the influential U.S. Circuit Court here decreed a settlement where the government agreed not to press the mandate against two colleges, Belmont Abbey and Wheaton College, until the supposed new rule is published. The court didn't suspend enforcement against other institutions, but it's possible the White House took it that way.

Perhaps the president doesn't need another uproar while the ultra right in Congress is spoiling for a crisis over raising the debt ceiling. Some of those in hate radio are urging Republicans to have the “courage” to shut down the government over it.

Battle continues over contraceptive mandate
(Bob Smietana, USA TODAY, January 10, 2013)

The Catholic Diocese of Nashville and other dioceses nationwide are continuing their legal battle with the Obama administration over the contraceptive mandate for employers.

The Nashville Diocese and seven other area Catholic groups sued over the mandate in September. They say the mandate violates their religious freedom because the church teaches that contraception is immoral.

A U.S. district court judge dismissed the lawsuit in November. The groups recently appealed, based on favorable court rulings in other states.

"We don't object to the availability of birth control," said Rick Musacchio, spokesman for the diocese. "We do object to having to pay for it."

The Nashville lawsuit is one of 43 nationwide that include more than 100 plaintiffs, according to the Washington, D.C.-based Becket Fund for Religious Liberty.

Courts have ruled in favor of 10 of the 13 for-profit companies that sued, seeking preliminary injunctions or temporary restraining orders against the mandate.

Non-profits haven't fared as well. The Catholic dioceses in Nashville and Pittsburgh along with several religious colleges, including Notre Dame, have lost in district court.

That is, in part, because the courts have ruled that the lawsuits are premature. Most religious nonprofits don't have to provide contraception until 2014, thanks to a one-year safe harbor provision in the mandate. The courts have ruled that the mandate has not harmed them yet.

The safe harbor doesn't apply to for-profit companies, which gives their lawsuits more urgency.

In the Nashville case, the Diocese of Nashville, Father Ryan High School, Pope John Paul II High School, Catholic Charities and Aquinas College qualified for the safe harbor.

But three other Catholic nonprofits, Mary Queen of Angels, Villa Maria Manor and St. Mary Villa did not, said Musacchio. They had to buy insurance plans for 2013 that included contraception, according to court documents.

That was a mistake on the part of their insurance company, ruled U.S. District Court Judge Todd Campbell. The policies have been modified to remove contraception.

At issue, in the lawsuits, is who qualified for a permanent exemption from the mandate and who did not.

According to rules proposed by the Obama administration in 2012, most churches would be exempt because they employ people that share their beliefs and serve people who share their beliefs.

Other nonprofits, like Catholic Charities, would not be exempt.

That's a problem, said Musacchio, because those groups are motivated by faith.

"We provide services because we are Catholic, not because our recipients are Catholic. Under that description, Christ himself would not qualify," he said.

Under current law, the safe harbor would expire at the end of the year, said Emily Hardman, communications director for the Becket Fund. Groups that don't comply with the law for religious reasons face fines.

The government has said it plans to issue new rules for faith-based groups this year.

Hardman said that the aim of the suits is to make sure those rules provide adequate protection for religious beliefs.

"What we are asking for is to have the conscience of every American protected," she said.

Supporters of the mandate say that it is constitutional. They say employees should decide whether to use contraception or other health services, not their employers.

Faith-based groups still have to follow the law, said Hedy Weinberg, executive director of the American Civil Liberties Union in Tennessee

"Religiously affiliated employers have to treat their employees fairly," Weinberg said. "It is not about religious liberty. It is about ensuring that women employees are treated fairly and that women have access to a full range of health care services."

Weinberg said that the federal Equal Employment Opportunity Commission has ruled that if an employer-provided health plan covers prescriptions, it has to include birth control.

According to the EEOC, refusing to provide birth control is sex discrimination, said Weinberg.

"Real religious freedom gives everyone the right to make their own decision," she said.

Musacchio said that employees are free to choose to use contraception and can pay for it on their own. If they can't afford birth control, they would likely qualify for free contraception.

The diocese is hopeful its appeal will succeed. That's in part because a district court in New York has ruled that the diocese there does face possible harm from the mandate even if it has not been enforced yet. And an appeals court in Washington, D.C., has ordered the federal government to issue new rules for religious groups as soon as possible.

In 2013, escalating battles over claims of conscience
(Charles C. Haynes, FirstAmendmentCenter.org, January 10, 2013)

Let’s start the New Year with a conundrum as old as the Republic:

When religious convictions clash with secular laws, how far should government go to accommodate religious claims of conscience?

From Colonial conflicts over the refusal of Quakers to take up arms to the more recent refusal of Jehovah’s Witnesses to salute the flag, American history is replete with robust arguments over the limits of “free exercise of religion” as guaranteed by the First Amendment.

Religious groups have scored victories (using peyote in Native American ceremonies is legal) and suffered defeats (practicing polygamy is illegal). But in all of these battles, attempts by the state to burden religious practices are always hotly contested – and that’s as it should be in a nation founded on religious freedom.

In 2013, religious objections to government laws and regulations will once again provoke vigorous public debate, countless court challenges and really tough decisions over whether and when government should accommodate religious claims of conscience.

Consider that some 30 lawsuits have been filed by religious groups and individuals challenging the contraceptive-coverage mandate in the Affordable Care Act (aka Obamacare). Some of these cases involve religiously affiliated organizations (such as Catholic hospitals) and others religious owners of for-profit businesses. Churches and other houses of worship are already exempt.

At the moment, the Department of Health and Human Services has imposed a moratorium on enforcement of the contraceptive-coverage mandate until August, giving the government time to reconsider the regulations as applied to nonprofit religious employers.

But even if the rules are rewritten to exempt religiously affiliated organizations (and the prospects that this will happen are highly uncertain), the mandate will still apply to for-profit businesses run by religious people who object to providing the coverage because it violates their faith.

Simply put, does the government have a compelling interest in requiring a religious employer to pay for insurance that provides drugs and services that the employer finds religiously objectionable? Or do religious individuals and groups have the right to be exempt from a government mandate that they believe substantially burdens their free exercise of religion?

Parallel questions are at the heart of the same-sex marriage debate, the other major public-policy battle involving a conflict between civil laws and religious convictions that will be widely contested in 2013.

With same-sex marriage now legal in nine states plus the District of Columbia – and with the U.S. Supreme Court poised to rule on the issue by June – some religious groups are gearing up for a multi-front fight to win exemptions from state regulations requiring recognition of same-sex married couples.

Religious organizations opposed to same-sex marriage say they will argue for new “conscience clauses” and other legislative accommodations that will protect them from having to recognize same-sex relationships.

If no such exemptions emerge, some religious leaders warn, religious groups will be forced to make difficult choices to preserve their religious freedom. They cite the decision by Catholic Charities in Boston in 2006 to end their involvement in foster care and adoption rather than provide those services to same-sex couples as an example of what will happen elsewhere if religious requests for exemptions are not granted.

It goes without saying that Americans are deeply divided over the merits of religious demands for accommodation in both of these public-policy fights.

But I would argue that it is in everyone’s best interest for lawmakers to do the hard work of finding ways to uphold the free exercise of religion as much as possible even as they enact laws they believe serve the common good.

As James Madison argued, the right of every individual to follow the “dictates of conscience” is an inalienable right – a right that government has an obligation to protect unless an overriding societal interest trumps the religious claim. The line the government draws on the religious freedom of some today may be drawn on many others tomorrow.

Forcing citizens to make what the Supreme Court once called a “cruel choice” between following their God and conforming to a government law or regulation that violates their faith may sometimes be necessary, but in a country committed to religious freedom it should always be rare.

Ken Cuccinelli’s ‘go to jail’ comment
(Rob Cardwell, WTVR News, January 11, 2013)

It’s no secret that Virginia Attorney General Ken Cuccinelli is a champion of conservative causes. But we’re finding out just how far he’ll go to protect them, or how far he wants his followers to go, even if it means winding up behind bars.

Cuccinelli spoke on radio host Steve Deace’s show Wednesday night. He said going to jail is a way employers can protest a mandate in the healthcare reform bill. The bill forces them to pay medical insurance for their employees to cover the costs of contraceptives. Cuccinelli also strongly supports the lawsuit filed by Hobby Lobby stores against the government’s affordable care act.

It requires the company to cover the cost of contraceptives for its employees. If they don’t, Hobby Lobby could face up to $1.3 million in fines each day it fails to comply.

A devout Catholic, Cuccinelli believes opponents of the mandate should put the controversial measure on trial by making the government enforce it in as heavy-handed a way as possible.

Recently, a U.S. District Judge said churches and religious organizations have protection against birth control provisions in the healthcare mandate, but Hobby Lobby is not a religious organization.

With the election for governor coming up, Cuccineli is showing voters where he stands on issues. If chosen as the GOP candidate, he’ll more than likely face former Democratic National Committee Chairman Terry McAuliffe who announced last month that he plans to run for governor.

Employers challenging health law contraceptive provision
(Robert Barnes, The Washington Post, January 20, 2013)

The next legal challenge to the Affordable Care Act is moving quickly to the high court, and bringing potent questions about religious freedom, gender equality and corporate “personhood.”

The issue is the health-care law’s requirement that employers without a specific exemption must provide workers with insurance plans that cover a full range of birth-control measures and contraceptive drugs.

Inclusion of the no-cost contraceptive coverage for female workers has always been a controversial part of the legislation. It has now sparked more than 40 lawsuits around the nation involving more than 110 individuals, colleges, hospitals, church-affiliated nonprofits and private companies.

The cases involving those with religious affiliations are in limbo, as the Obama administration works on regulations that might provide a compromise. In a case involving two such institutions — Wheaton College in Illinois and Belmont Abbey College in North Carolina — a panel of the U.S. Court of Appeals for the D.C. Circuit is requiring administration officials to report by mid-February about the new rule, which is to be issued by spring.

At the same time, “the business cases are moving quickly,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, one of the groups coordinating the challenges to the law. Duncan said he believes the cases will be decided in lower courts in plenty of time for the Supreme Court to decide whether to review the issue in its term that begins in October.

By Duncan’s count, there are 14 cases filed by business owners who say the law forces them to choose between running their companies and following their religious beliefs. In nine of those cases, courts have issued injunctions until the conflicts can be decided on their merits.

The cases differ by what the business owners say they are willing to provide — some say all contraceptives would violate their religious beliefs, others object only to abortifacients such as the “morning-after pill” and intrauterine devices. But all rely on protections in the First Amendment regarding free exercise of religion and in the Religious Freedom Restoration Act (RFRA).

The 1993 act prohibits the federal government from imposing a “substantial burden” on a person’s exercise of religion unless there is a “compelling governmental interest” and the measure is the least-restrictive method of achieving the interest.

No court of appeals has reached the merits of the challenges, but two — the 7th and 8th circuits in Chicago and St. Louis respectively — have granted business owners injunctions, and two — the 6th in Cincinnati and the 10th in Denver — have denied them.

And along the way, those decisions give a pretty clear indication of the fight ahead.

The most promising for the challengers is a ruling by a three-judge panel of the 7th Circuit. Cyril and Jane Korte, owners of K & L Contractors, said the new law offends their Roman Catholic beliefs. They wanted to replace the insurance program they offered their workers, which they found provided contraceptive services, with one that did not.

The Kortes made their main challenge under RFRA. The government opposed, saying that, among other things, RFRA did not apply to corporations, and that whether their employees took advantage of contraceptive services had no impact on the Kortes’ practice of religion.

The panel split 2 to 1 for the Kortes. “The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it,” wrote Circuit Judges Joel M. Flaum and Diane S. Sykes in granting the couple an injunction.

They suggested the corporation had rights under RFRA by citing the Supreme Court’s decision in Citizens United v. Federal Election Commission, which said corporations at least had political speech rights under the First Amendment.

The judges said it didn’t matter that the employees would be the ones to make use of the covered contraceptives. “The religious liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not — or perhaps more precisely, not only — in the later purchase or use of contraception or related services.”

Circuit Judge Ilana Diamond Rovner disagreed. “What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object,” she wrote. If that were right, she added, what limits might apply to employers limiting coverage.

That is essentially what judges in the 10th Circuit found regarding the company Hobby Lobby, which has 500 stores in 41 states. “It is by God’s grace and provision that Hobby Lobby has endured,” founder and CEO David Green said in a statement.

But the judges in the Hobby Lobby case said that Green’s exercise of religion was not affected by the decisions of his workers. It is only after a “a series of independent decisions by health care providers and patients” that Green’s health care plan might subsidize an activity to which he objects, the court said.

Hobby Lobby’s case briefly reached the Supreme Court, where Justice Sonia Sotomayor, as the justice responsible for that circuit, turned down its request for an injunction. The Supreme Court’s standards for such grants are more demanding than those of appeals courts, she said.

And she noted that the question of whether corporations are covered by RFRA has not been considered by the high court.

The legal battles have mobilized forces on both sides. The National Women’s Law Center filed a brief in one of the cases that said the contraceptive requirements “further the compelling governmental interests of safeguarding public health and promoting gender equality in the least restrictive means possible.”

The center’s senior counsel, Gretchen Borchelt, said in an interview that an employer should have no more right to make health care choices for its workers than it could claim in telling them how to spend their paychecks.