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Will the Supreme Court Take On Contraception Coverage Challenge?

Bill Clark/CQ Roll Call File Photo
Black has introduced a bill that includes language to amend the health care law so businesses or individuals are not required to buy or provide health insurance that covers a service they object to on religious or moral grounds.

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.

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