Fight Over Obamacare Contraception Mandate Rages On

Business wins relief against contraceptive mandate, bringing number of injunctions to 10

January 4, 2013

Another business won temporary relief Thursday from the Obamacare mandate to provide contraception against its religious convictions, bringing the total number of injunctions against the mandate to 10.

The United States District Court for the Northern District of Illinois granted Triune Health Group preliminary injunctive relief against the mandate.

Triune’s owners, Christopher and Mary Anne Yep, are "ardent and faithful adherents of the Roman Catholic religion" who object to the government forcing them to purchase insurance "for drugs and services to which they object based on their religious convictions," according to the court’s two-page decision.

There are two different kinds of cases against the mandate, according to Emily Hardman, communications director for the Becket Fund, which is representing many of the plaintiffs. She divides the suits between those in which the plaintiff is a nonprofit organization and those in which the plaintiff is a for-profit business.

For many business owners the Obamacare mandate truly began on New Years Day. The law required businesses to purchase health insurance that complied with mandated requirements when they renewed their insurance plans, said Hardman. Many businesses renew their insurance at the beginning of the year.

While religious nonprofit organizations have been granted a provisional "safe harbor" as the administration works out a conscience accommodation, the government has done no such thing for the businesses that object.

"There’s no illusion that the government will give any compromise," Hardman said. "They’re definitely not waiting for anything from the government."

Hardman said the businesses suing the government all provide generous health insurance packages and are simply seeking a "very, very narrow exemption" from having to pay for the certain drugs to which they object.

The size of the exemption varies from business to business. For example, Hobby Lobby objects only to the morning-after and week-after pill, which it considers to be abortion-inducing, while businesses run by Catholics object to paying for a much broader array of contraceptive drugs.

"These cases involve the God-given freedom that Americans have to live and do business according to their faith," said Matthew Bowman, senior counsel for Alliance Defending Freedom.

Bowman said that, in the for-profit cases, "the government admits that it is attacking their faith and their practice now." Bowman is lead counsel on two cases and co-counsel in four other cases.

"Of the courts that have ruled on the religious freedom question, 75 percent of them have protected religious freedom," he said. "I think that speaks to the fact that forcing some thing to surrender their faith in order to earn a living for their family is unprecedented and unconstitutional."

Frank Manion, senior counsel for the American Center for Law and Justice and lead counsel on two suits against the mandate, said that in the three cases in which the courts did not grant injunctive relief, the courts "have made the same basic mistake."

Those courts did not focus on the specific complaint of the owner, instead basing their decision on the fact that the owners do not have to take the objectionable drugs themselves. Manion argues the businesses object not to taking the drugs themselves but instead to paying for them.

The courts that have granted relief say the mandate is a "substantial burden" which can only be justified after the government has shown a "compelling state interest" and uses the least restrictive means possible to attain the interest, Manion said.

The government’s exemption of 190 million insurance plans through a grandfather provision allowing individuals to keep their health insurance they had before Congress passed Obamacare shows that no such compelling state interest exists, he said.

Charles Haynes, director of the Religious Freedom Education Project at the Newseum, said the government did not go about crafting the mandate in the best way possible.

"The Affordable Care Act, when the regulations were introduced, the administration missed an opportunity to get it right," Haynes said. "The guidelines came out and there was such a backlash that the administration had to backtrack."

Haynes said the lawsuits are part of a larger trend in American society where religious claims are being given less and less deference.

"Historically in the United States, freedom of conscience or religious freedom is considered our first freedom," Haynes said.

He attributed the decline in religious deference to increasing secularization and an increasing diversity of religious groups.

"Government’s role in our lives has expanded in some pretty dramatic ways, and simultaneously we are an increasingly secular society," he said. He did not draw a causal link between the two, but said the government’s expanding reach is complicating claims of the priority of religious freedom.

While Haynes said he expects the nonprofits to succeed in their suits, he expressed greater doubt that for-profits will prevail.

"Businesses that are for-profit have to comply with all kinds of laws that religious organizations are exempt from because of their mission," he said. "I think it’s really a much more difficult case to make."

Bowman said he expects the Supreme Court ultimately to decide the case because of the number of cases and the diversity of court responses to the issue.

The Department of Health and Human Services did not return a request for comment.