Contraception mandate may go to Supreme Court

The Obama Administration is headed back to court to defend another aspect of the Affordable Care Act. The Administration announced yesterday that it will appeal a June decision that issued an injunction against a government mandate that requires employers to provide coverage for abortion-inducing and contraceptive medications. The ruling came in a suit filed by the Hobby Lobby.

Last year, the Department of Health and Human Services ruled that employers must provide their employees with insurance that contains coverage for abortion-inducing and contraceptive drugs. Many employers, including the Catholic Church, contested the mandate on the grounds that it violated their religious beliefs.

Traditionally, religious exemptions were allowed for such controversial laws. Accommodations for religious believers are required by the Religious Freedom Restoration Act. The Obama Administration’s rule included a narrow exemption for churches, but not other religious organizations. Bishop David Zubik noted that the exemption could not even have been applied to Jesus and his disciples.

As dissent against the rule grew, President Obama announced a unilateral compromise in February 2012. As Examiner reported at the time, the compromise would still require religious groups to cover the abortion-inducing drugs in their insurance plans, but they would not be charged for them. Instead, the president would force insurance companies to provide the coverage at no cost to the religious groups. Presumably, the cost would be spread among other nonreligious insureds. There was no relief for private businesses who had moral objections to the mandate.

Several businesses filed suit against the mandate. In a June 2013 ruling, a judge issued a temporary injunction against government enforcement of the mandate for the Hobby Lobby, a company owned by evangelical Christians. According to Fox News, the company’s insurance provides 16 forms of birth control, but its owners oppose birth control methods that can prevent implantation of a fertilized egg in the uterus, such as an intrauterine device or forms of emergency contraception, because they believe that life begins at conception.

The company had argued that the government’s action was a violation of the freedom of religion and the Religious Freedom Restoration Act. According to the Wall St. Journal the act, passed in 1993 with only three nays and signed into law by President Clinton, requires that any “substantial burden” on the exercise of religion be “in furtherance of a compelling governmental interest” and be the “least restrictive means” of furthering that interest.

The injunction would apply until the 10^th circuit federal appeals court could rule on the merits of the case. It also gave the government until Oct. 1 to decide whether to appeal the decision to the Supreme Court. On Sept. 19, the Obama Administration asked the Supreme Court to reverse the Hobby Lobby decision according to Reuters.

In a separate case, the Alliance Defending Freedom, a Christian legal group, also filed a petition with the Supreme Court on Sept. 19 in a similar case. Conestoga Wood Specialties, a Mennonite-owned business in Pennsylvania, had filed a suit similar to that of the Hobby Lobby. A three judge panel of the third circuit federal appeals court ruled against Conestoga in July and denied the company an appeal to the full court. The ruling subjects the company to fines of $3 million per month if they do not comply with the mandate to provide their employees with abortion pills and contraceptives.

Reuters notes that because federal appeals courts are split on the issue, the Supreme Court is likely to take up at least one of the cases. If the high court does hear a case on the issue, a ruling would be expected during the current term which starts in October and ends in June 2014. In 2012, the Supreme Court upheld the Affordable Care Act’s individual mandate. In upholding the law, the Court opened a host of other issues, including the question of religious freedom for employers. Fox News notes that there are 63 other cases challenging the mandate, 34 of which involve for-profit businesses.

Originally published on Elections Examiner

More legal trouble for Obamacare

President Obama has suffered another setback in court. A federal judge in Colorado recently ruled that the Department of Health and Human Services mandate that all insurance policies cover contraceptive and abortifacient drugs placed an illegal burden on freedom of religion.

Judge John Kane’s ruling was narrow, currently applying only to Hercules Industries according to Talking Points Memo. The company filed suit against the mandate claiming that it violated the Catholic beliefs of its owner. Judge Kane agreed and granted an injunction that prevented enforcement of the mandate against Hercules until courts could rule on the merits of the case. Judge Kane was an appointee of Democratic President Jimmy Carter.

There are also other lawsuits challenging the mandate that could benefit from the precedent set by Kane’s ruling. According to the Catholic News Agency, at least 43 Catholic groups have filed suit against the HHS mandate. Atlanta Archbishop Wilton Gregory told the Georgia Bulletin that Georgia dioceses are not a part of the litigation, but are working to support it. He called on Catholics to “pray for its success and support the initiatives that are intended to protect our religious freedom.”

Judge Kane based his ruling on the Religious Freedom Restoration Act of 1993. This law requires that any “substantial burden” placed on religious beliefs having a “compelling government interest” and be the “least restrictive means” of advancing that interest. Judge Kane found that the HHS contraceptive mandate placed a “substantial burden” on Hercules’ First Amendment right to the free exercise of religion.

The Hercules case will not provide a silver bullet to slay Obamacare. A court may rule that the HHS mandate is illegal, but it is unlikely to throw out the entire law. A Supreme Court ruling in June established the constitutionality of the law by granting Congress an immense new taxing power.

Kane’s injunction does set the stage for a landmark ruling on freedom of religion, however. If a court subsequently rules in favor of Hercules it could strike down the mandate entirely. Either way, the ruling is likely to be appealed by the losing party and could eventually find its way to the Supreme Court.

In the end, the election may render the challenges against the mandate moot. If Mitt Romney becomes president, he has stated that his first act would be to issue an Executive Order that would stop the implementation of Obamacare. If Republicans win control of the senate, a repeal of Obamacare would be certain to pass both houses of congress.

Read this article on Examiner.com

http://www.examiner.com/article/obamacare-contraception-mandate-faces-legal-setback

Contraception compromise not likely to satisfy Catholics

The brouhaha over contraception for Catholic churches and charities began with a ruling issued by Health and Human Services secretary Kathleen Sebelius a few weeks ago. The ruling, as part of the implementation of the Affordable Care Act (“Obamacare”), would require that all companies provide their employees with health insurance that included contraception, abortion-inducing drugs, and sterilization at no out-of-pocket cost.

As originally drafted, the rule exempted churches, but not religious charities, schools and nonprofit organizations. Since the Catholic Church teaches that birth control is wrong, the HHS rule put Catholic groups in the uncomfortable position of being forced to purchase a service they believed to be morally wrong, a violation of the First Amendment’s guarantee against laws preventing the free exercise of religion. The controversy provides a stark example of the difference between freedom of religion and the “freedom of worship” that is often referenced by members of the Obama Administration.

The ruling also mandates that insurance policies cover abortion-inducing drugs, which many other religions besides the Catholics oppose. Ironically, the Affordable Care Act was passed because President Obama signed an executive order that convinced pro-life Democrats that federal funds would not be used for abortion. Now, under Sebelius’ ruling, federal funds are not being used, but the government is compelling religious groups to use their own money to pay for drugs that cause abortions.

The United States has a long history of including exemptions in legislation to respect the freedoms of religion and conscience. In particular, laws have been passed to protect doctors and pharmacists who believe that abortion is wrong and choose not to involve themselves in abortion procedures or fill prescriptions for abortion-inducing drugs.

Even though the Obama Administration gave the religious organizations an extra year to comply with the ruling, the result was a firestorm of opposition. Many Catholic bishops announced their intention to not comply with the HHS ruling. Religious leaders of other faiths joined them in protesting the president’s disregard for the freedom of conscience. Chuck Colson, a prominent evangelical leader, urged Christians to sign a petition asking President Obama to overturn the ruling and suggested that the time for civil disobedience may be near.

Georgia has several Catholic hospitals, including St. Joseph’s in Atlanta, which could be affected by the policy. In addition, the Catholic Church operates other charities in Georgia that include services from disaster relief to pregnancy counseling and adoptions. If the rule stands, these organizations could be forced to choose between abandoning their principles or using their money to pay hefty government fines instead of helping people.

As Democratic congressmen began to side with the religious groups against the rule, President Obama unveiled a compromise on Friday in a speech in which he equated pregnancy with an illness. In his speech, which is available on Youtube, the president proposed a compromise in which religious organizations with a conscientious objection would not have to pay for the undesired coverages. In those cases, “the insurance company, not the hospital, not the charity, will be required to reach out and offer the woman contraceptive care free of charge, without co-pays, and without hassles.”

The compromise left several questions unanswered. Most obvious is the question of who pays. President Obama’s new ruling mandates that women not be charged for the contraceptive care, but nothing is free. If the insurance companies are forced to provide the coverage and are unable to pass the costs along to the religious groups for whom the women work, they will most likely raise the cost of insurance for nonreligious groups and companies. Essentially, insurance rates will be increased so that the government can force contraceptive and abortion coverage on groups that don’t want it.

Another question is how groups that self-insure would be treated under the new law. When a group self-insures, it uses its own money to pay medical claims without purchasing insurance. Therefore, there would be no insurance company to “reach out” and provide the contraceptive coverage. In a statement on its website, the Archdiocese of Atlanta pointed out that it, like many Catholic institutions, is self-insured.

Most importantly, religious groups are still being forced to accept insurance coverages that they find immoral, even though they are not be forced to pay for them directly. Likewise, nonreligious groups would still be required to pay for the coverages, even if they find them objectionable.

Consequently, U.S. Conference of Catholic Bishops has said in a statement , “The only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.” The statement continues, “We will therefore continue–with no less vigor, no less sense of urgency–our efforts to correct this problem through the other two branches of government.” The bishops then call upon Congress to pass the Respect for Rights of Conscience Act, which would allow health plans to decline coverage that is against religious beliefs.

At this point, it appears unlikely that President Obama’s proposed compromise will result in a solution to the crisis of conscience. Even though most Americans support the right to use birth control, they oppose government attempts to force it on religious organizations. With Americans split on abortion, there is likely to be even less support to force abortion-inducing drugs on religious groups. A further retreat by the Obama Administration is likely in the coming weeks in order to avoid alienating Catholic and independent voters.

Originally published on Examiner.com:

http://www.examiner.com/conservative-in-atlanta/contraception-compromise-unlikely-to-satisfy-catholics