The latest round in the contraception mandate battle: A new court decision, more lawsuits

By Scott Alessi| comments | Print this pagePrint | Email this pageShare
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Much has been written in the last year and a half about the Department of Health and Human Services' controversial requirement that employers must provide coverage of artificial contraception as part of their health insurance plans under the Affordable Care Act (for a look at some of our past coverage on the topic, click here). And yet, we're still a long way from a resolution.

For those who have lost track, here's a brief, condensed summary: The federal government asked to hear the concerns of groups opposed to the so-called "HHS mandate"--most notably, the Catholic bishops--and made several rounds of revisions to the requirements. The final rule, issued in June, offered a workaround for Catholic employers who are morally opposed to covering birth control that would require the insurance company to cover the cost, but, still not satisfied, the bishops held firm in their opposition.

Opponents of the law have also, of course, wasted no time in taking the matter to the courts. The Catholic media organization EWTN, which had its first lawsuit dismissed by a district court judge, has now filed suit again. EWTN CEO Michael Warsaw said in a statement that, "The government has decided that EWTN is apparently not religious enough to be exempt from the rule," although I haven't seen any explicit evidence that EWTN applied for an exemption and were actually turned down (and as Bryan Cones speculated on our blog last year, EWTN may actually meet the criteria for a religious exemption under the law, but we won't know for sure until they try).

In another lawsuit, California's Thomas Aquinas College has joined with several Catholic organizations in Washington, D.C. to contest the law. Their argument goes beyond just saying that religious liberty is being violated and directly accuses the government of trying to call into question the church's teaching on birth control, claiming "the Mandate was part of a conscious political strategy to marginalize and delegitimize ... religious views on contraception by holding them up for ridicule on the national stage." That's an interesting interpretation.

Meanwhile, private employers have had mixed results with their efforts to contest the law in court. Last week the Sixth Circuit Court of Appeals ruled that for-profit company Eden Foods is not exempt from the law simply because its founder, Michael Potter, is a Catholic who is morally opposed to contraception. The decision upheld an earlier court ruling that Eden Foods, as a for-profit secular corporation, is not guaranteed the same rights as a person under the Religious Freedom Restoration Act, and affirms the Sixth Circuit Court's recent ruling in a similar case involving the Autocam Corporation.

On the other end of the spectrum is craft store chain Hobby Lobby, which has been one of the most vocal opponents of the law in the corporate sector. Hobby Lobby actually won their case in the 10th Circuit Court, which used the "corporations are people" argument to say that Hobby Lobby does indeed have the same protections as a person when it comes to religious freedom. With the two circuit courts coming to opposite decisions, it is likely that the Supreme Court will ultimately be left to decide whether secular corporations can claim that the law violates their religious beliefs.

As for the mandate itself, it doesn't appear to be going away anytime soon--nor does the heated debate over its impact on Catholic employers.