Enjoy the festivities, President Obama, and while you’re on the grand stage Monday, it might be wise to make nice with the assembled Supreme Court justices.
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.
Employers challenging health law contraceptive provision
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Employers challenging health law contraceptive provision
