Will the Supreme Court Take On Contraception Coverage Challenge?

While Congress continues to focus on the rocky rollout of the health care overhaul, the Supreme Court is expected to mull over challenges to another piece of the law two days before the justices sit down to their Thanksgiving dinners.

On Nov. 26, the court is scheduled to meet privately to decide which of four cases, if any, to take up this term that challenge the Obama administration’s requirements that most health insurance plans cover birth control free of charge.

Ninety lawsuits have been filed over the rules, according to the latest tally from the National Women’s Law Center. That includes close to four dozen from for-profit businesses.

Opponents say the requirements violate their religious freedom. Supporters maintain that the way the rules were written strikes a balance between reproductive and religious rights. Contraception is an essential health service for women and their families, proponents argue.

The Supreme Court conference will come nearly a year and a half after the high court voted to uphold the core of the health care law (PL 111-148, PL 111-152) — the requirement that most people buy health insurance or pay a penalty — in a 5-4 decision. This time, three of the four cases are more narrowly focused on businesses seeking an exemption to the contraception rule; the fourth, from a religiously affiliated university, also challenges other aspects of the law.

If the justices decide to take up one or more of the challenges, a ruling could be expected by the beginning of the summer. And the general consensus seems to be that the court will choose to weigh in on the question.

Andrew J. Pincus, a partner at Mayer Brown, said he thinks it’s highly likely that the justices will agree to take up one or more of the cases, given the importance of the issue and the fact that the Justice Department has asked for a review. He also pointed to the conflicting rulings coming out of the appeals courts. But at the same time, Pincus cautioned that one “can never predict what the court is likely to do.”

Perhaps recognizing that uncertainty, opponents of the birth control requirements have continued to press for Congress and the administration to revise the rules as the challenges move through the courts. The House passed a version of legislation to fund the government in September that would have exempted until 2015 employers, insurers and individuals that oppose the birth control coverage on religious or moral grounds; that proposal died in the Senate.

Rep. Diane Black, R-Tenn., has introduced a bill (HR 940) that includes language to amend the health care law so those same businesses or individuals are not required to buy or provide health insurance that covers a service they object to on religious or moral grounds. The measure, which has 188 co-sponsors, is similar to a Senate proposal from Missouri Republican Roy Blunt that stalled in the previous Congress.

The controversial requirement has its roots in the health care overhaul, which requires that new health plans cover certain preventive services without cost-sharing. In August 2011, the Department of Health and Human Services issued a rule that included contraception approved by the Food and Drug Administration among the services that must be offered for free, based on recommendations from the Institute of Medicine.

The rule included an exemption for religious institutions, such as churches and mosques, that provide health coverage for their employees. But conservatives and some religious groups decried the exemption as too narrow, eventually prompting the Obama administration to rework the specifics so that religious nonprofits, such as hospitals and charities, do not directly arrange or pay for the coverage. Some continue to object to that arrangement.

No workaround was extended to businesses, however. That means for-profit companies whose owners have religious objections to providing contraceptive coverage are still on the hook for offering birth control coverage. And that’s where the plaintiffs in three of the cases scheduled for the Nov. 26 conference come in.

The most well-known challenger is probably the arts and crafts chain Hobby Lobby, which has more than 500 stores and more than 13,000 full-time employees, according to court filings. The Green family founded both Hobby Lobby and Mardel, a Christian bookstore chain included in the case.

The court documents note that the Greens “allow their faith to guide business decisions for both companies.” One example is that, despite a cost of millions of dollars each year, they close all stores on Sundays to give their employees a day of rest. And when it comes to health insurance, the Greens are opposed to coverage of any contraceptive that they think can cause abortions.

Adele Keim, legal counsel at the Becket Fund for Religious Liberty, said Hobby Lobby’s owners do not want to offer four drugs and devices in company health care plans: the emergency contraceptives Plan B and Ella and two types of intrauterine devices. The Becket Fund is representing the family businesses in the case.

But one of the broader questions surrounding the case is whether a for-profit corporation is entitled to protection under the 1993 Religious Freedom Restoration Act. If so, another is whether requiring the businesses to offer coverage that goes against the owners’ religious beliefs or pay fines is a violation of that statute.

Keim said the government cannot argue that it’s advancing a compelling government interest through the least restrictive means possible, as the law lays out, because of the “enormous number” of exemptions to the requirements. Some groups are excused for religious reasons, she noted, while others are exempt through grandfathering or because they employ fewer than 50 workers.

“HHS really can’t meet strict scrutiny in these cases because of these large gaps that Congress left unregulated,” Keim said.

But Louise Melling, deputy legal director of the American Civil Liberties Union, said her group works to protect the right of religion and does not think the rule substantially burdens religious freedom. The government interest outweighs it, she said. The ACLU starts with the idea that individuals have a right to their beliefs, she added, but those individuals do not have the right to impose their beliefs on others.

“We don’t think there’s a substantial burden on these for-profit institutions,” said Melling, whose group has filed friend-of-the-court briefs in a number of cases in support of the HHS rule.

For now, it’s a waiting game until Nov. 26, when the justices are expected to decide whether to take up the Hobby Lobby case, one of the other challenges or some combination of the cases — or none of them.

Pincus also noted that, based on typical procedure, the public may have to wait until the following Monday to see which cases the court will consider, although the list could be released sooner.

If the court does decide to hear one or more of the three for-profit cases, a ruling against the government isn’t expected to have a significant effect on the health care law. But Pincus pointed out that the court’s reasoning could have many implications for other regulations related to employment and health care.

“The questions have potentially broad ramifications that go far, far beyond the health care contraception mandate,” Pincus said.

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