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.
The stores’ owners don’t object to all birth control, just methods that prevent a fertilized egg from being implanted — Plan B, the “week after” pill Ella, and intrauterine devices. On June 27, the full Tenth Circuit ruled in favor of Hobby Lobby, finding that it could indeed be a “person” exercising religion. The statute at issue, the Religious Freedom Restoration Act, doesn’t define “person,” so the court turned to the Dictionary Act, which says the word “person” includes, among other things, corporations. The court said there’s no basis for the government to treat differently for-profit corporations, which get no break from the contraception mandate, and nonprofit religious ones, which may be exempt. “Religious conduct includes religious expression, which can be communicated by individuals and for-profit corporations alike,” Judge Timothy Tymkovich wrote for the majority.
The government appealed the decision to the Supreme Court in September. Hobby Lobby also asked the high court to take up the case — and added former solicitor general Paul Clement of Bancroft as co-counsel.
“We think this is a really important issue and the Supreme Court is going to have to decide it,” Windham said. “Even though Hobby Lobby won a great victory at the Tenth Circuit and we’re very happy about it, we don’t want to see it upset on appeal.”
The circuit split deepened on November 1, when the D.C. Circuit backed the owners of Freshway Foods and Freshway Logistics who objected to the contraception mandate, finding the law wasn’t properly tailored.
Gregory Lipper, senior litigation counsel at Americans United for Separation of Church and State, who has filed amicus curiae briefs in 13 cases supporting the government, said it’s “a near certainty” the high court will take up the issue. “You’ve got a company asking for the right to deny tens of thousands of women access to contraception based on the religious beliefs of the people who happen to own the company,” he said. “Its’ quite likely the Supreme Court will hear at least one of the cases this term.”
Jenna Greene can be contacted at email@example.com.