Anti-abortion activists march past Capitol Hill on Friday during the March for Life.
Abortion opponents rallying by the thousands Friday in Washington at the annual March for Life have lost some political battles lately but won a string of court victories, thanks in part to a diverse coalition challenging a contraception mandate in the health care overhaul.
For-profit businesses, state attorneys general and educational institutions are among more than 100 plaintiffs who have mounted some 40 lawsuits challenging the mandate, according to the Becket Fund for Religious Liberty, a nonprofit legal institute that has played a leading role in the suits. With lower courts in dispute over the mandate, both sides agree the issue will almost inevitably be settled by the Supreme Court.
The mandate requires employer-sponsored health care plans to cover contraception, including intrauterine devices and emergency birth control drugs that many religious employers equate with abortion. The Obama administration offered a narrow exemption for religious organizations and required insurers, not employers, to pay for the services. However, opponents remain unsatisfied.
Most of the mandate’s challengers are nonprofits such as Catholic educational institutions, hospitals, and archdioceses. But Protestant institutions have also sued, as have several for-profit businesses, including the arts-and-crafts chain Hobby Lobby Inc., based in Oklahoma City. The fight has drawn in Washington players, such as the Becket Fund, that do not typically focus on abortion but that regard the mandate as a violation of religious freedom.
“We’re trying to shape the law around religious liberty and not jump into these culture war issues,” said Becket Fund President William Mumma, a former Wall Street executive. “I don’t see it by any means as a contest over abortion.”
The white shoe law firm of Jones Day has also deployed a team of lawyers around the country, including a half-dozen in its Washington office, to defend Catholic dioceses and educational institutions suing the federal government. Other leading players representing the plaintiffs include the anti-abortion group Americans United for Life, the Scottsdale, Ariz.-based Alliance Defending Freedom and the American Center for Law and Justice.
“I think you’re seeing this unique coalition coalescing on this issue because of the scope of what’s at stake,” said Jay Sekulow, chief counsel at the American Center for Law and Justice, a conservative legal services nonprofit. The legal fight combines religious liberty and conscience as well as reproductive health issues. Sekulow added, “It’s a broad class of plaintiffs that are impacted by this.”
Sekulow’s group has filed four direct challenges on behalf of for-profit companies against the Department of Health and Human Services, obtaining injunctions in all three.
Many of the tax-exempt groups filing suits have found themselves in a holding pattern in the courts, in part because the administration has agreed to delay implementation of the mandate for those groups until August of this year while it crafts compromise regulations, Becket Fund general counsel Kyle Duncan said. But in 14 cases involving for-profit businesses, nine lower courts have given the plaintiffs preliminary injunctive relief, according to Duncan.
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