Even as the Affordable Care Act hurdles towards full implementation, legal challenges to the requirement compelling employers to offer contraceptive services in their health insurance plans demonstrate Obamacare is anything but settled law.
According to the Thomas Becket Fund for Religious Liberty, some 74 lawsuits with over 200 plaintiffs representing hospitals, universities, businesses, and schools have been filed challenging the mandate on religious liberty grounds.
Although the Department Health and Human Services (HHS) exempted churches from the regulation, the wave of litigation was spawned by the lack of clarity for religiously affiliated organizations and for-profit businesses owned by individuals whose religious beliefs fundamentally oppose contraception.
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Rulings in the circuit courts have been mixed and contradictory, signaling an eventual return of the healthcare legislation to the Supreme Court — which previously upheld Obamcare's individual mandate as Constitutional.
The 6th U.S. Circuit Court of Appeals said in Autocam Corporation v. Sebelius that corporations are not exempt from the contraception rule because they are not considered "persons" capable of religious exercise under the federal Religious Freedom Restoration Act of 1993 (RFRA).
Autocam, a for-profit manufacturing corporation, and its owner John Kennedy argued the mandate violated their beliefs and their right to religious liberty as enumerated under RFRA. The court affirmed a lower court ruling and denied Autocam's request for an injunction.
On October 15, the Thomas More Society, the Catholic Vote Legal Defense Fund, and a Michigan law firm petitioned the Supreme Court to review and reverse the 6th Circuit's decision claiming the contraception mandate "abridges their federal constitutional and statutory rights to the free exercise of their religious faith as well as other legal rights."
In accordance with its religious beliefs, Autocam had designed its health insurance plan to specifically exclude "contraception, sterilization, abortion, and abortion-inducing drugs, in full accord and harmony with its owners' profound religious beliefs," noted the press release announcing the petition.
Meanwhile, two Department of Justice petitions seeking Supreme Court review were filed on September 19 almost ensuring that the justices will decide whether for-profit, secular companies can avoid the HHS mandate under RFRA.
Justice requested the high court review a ruling by the 10th Circuit that granted an injunction to Hobby Lobby, a chain crafts store, and a decision by the 3rd Circuit that rejected a request for injunction by Conestoga Wood Specialties Corp.
Matt Bowman, senior legal counsel of the Alliance for Freedom – which has filed at least a dozen suits challenging the contraceptive mandate – believes the Supreme Court will hear the Conestoga case because "all the elements are there: the lower courts disagree on the Constitutionality and there is no more important case than one involving the First Amendment and freedom of religion."
"We maintain that the freedom to practice your religion is not a right only reserved for the clergy. It is a human right that every American enjoys and the federal government is promoting an illusion that you cannot exercise that right when running a business," Bowman told Newsmax.
Stephen F. MacGuidwin, a healthcare attorney with the Michigan-based law firm Varnum, tells Newsmax that it is likely the Supreme Court will agree to hear at least two, if not three, cases, including Autocam.
"They are likely to hear [these cases] because the [10th and 3rd] Circuits have split and come out with opposite decisions on essentially the same issue. In addition, the 6th Circuit has come out with a third way in the Autocam case, in which they said the company was not considered a 'person' as defined in RFRA, so they do not participate in religious activities and have no standing," he said.
If the Supreme Court agrees that nonprofits are persons under RFRA, it would make it almost impossible for the government to enforce the contraception mandate. They would have to not only show that enforcing the mandate fulfills a "compelling government interest," but also that the HHS mandate is the least restrictive means to achieving it.
Another reason the Supreme Court may hear arguments on the issue is to avoid a "checkerboard" ruling in which different regions apply a universal law differently.
This was a similar argument made by the Thomas More Center, which filed a cert petition with the Supreme Court requesting the justices review the Autocam case.
In its petition on behalf of Autocam, Thomas More Center attorneys argued RFRA "cannot mean one thing in one part of the United States and something entirely different in another. This court’s attention is required to sort out the important legal questions."
"For us, this is really an issue of religious tolerance, the employers have clearly stated what their faith allows them to do and not do," said Erin Mersino, a trial attorney with the Thomas More Center, a public interest law firm with at least nine cases filed challenging the mandate. "It places a substantial burden on businesses whose religious beliefs are at odds with the mandate."
The courts in some jurisdictions have granted reprieves to employers as the higher courts attempt to resolve the issue. For example, on October 3, the 10th Circuit Court of Appeals said a case involving Hercules Industries of Denver was substantively similar to the Hobby Lobby case and it should not have to comply until the issue is settled by the Supreme Court.
As many as 30 companies nationwide have received similar relief.
While the Supreme Court decides whether to hear any or all of the petitions for review, business leaders face tough decisions of their own.
As Autocam's president John Kennedy wrote in a recent editorial in USA Today, there are only three options available: comply with the mandate in contradiction of his religious beliefs, pay more than $16,000,000 in fines per year for non-compliance, or cut his employees health insurance benefits.
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