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Experts Say Contraception Mandate Likely to Head to Supreme Court

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by Publius
Posted April 08, 2013, 11:59 AM

The Huffington Post reports:

The number of lawsuits challenging the Obama administration's contraception coverage mandate climbed to 60 last week, and legal experts on both sides of the issue are predicting that the Supreme Court will take up the issue within the year.

Thirty-two nonprofit organizations, including religious hospitals and schools, have challenged the rule. The mandate is part of the Affordable Care Act, and it requires third-party insurance companies to provide contraception coverage to the nonprofits' employees if they decide not to do so. While many of the lawsuits are either failing in court or moving slowly because they fall under President Obama's one-year grace period for nonprofits, the 28 for-profit companies that are suing the administration are seeing their cases move much more quickly.

The most prominent of those cases -- Hobby Lobby v. Sebelius -- took a significant step forward last week, when the 10th Circuit Court of Appeals granted Hobby Lobby's request to expedite the case and hear it en banc (by all judges on the court). Kyle Duncan, the attorney representing the Christian-owned Hobby Lobby against the Department of Health and Human Services, said he expects one or more of these cases to catch the Supreme Court's attention soon.

"The action of the court on Friday really raises the prominence of what was already a prominent case even higher," Duncan told HuffPost in a phone interview. "I think there's a very good chance the Supreme Court takes this up. You've got a nationwide mandate and many different plaintiffs all suing at the same time--presumably you're going to have courts going in different directions, so you've got very good conditions for Supreme Court review."

According to the rules of the Affordable Care Act, religiously affiliated nonprofit organizations, such as schools and hospitals, can opt out of paying for contraception coverage for their employees by instructing the third-party insurer to absorb the cost of the coverage and provide it directly to women. For-profit companies, such as Hobby Lobby, are not exempt from covering contraception and face large fines if they refuse to do so.

So far, 21 companies have petitioned for preliminary injunctions against the mandate so as to avoid the fines. Of those cases, 16 have been granted injunctions and five have been denied.

The Becket Fund is arguing in court that the religious exemption is too narrow because it excludes people like the Christian owners of Hobby Lobby, who morally object to contraception. Reproductive rights groups, including the National Women's Law Center, contend that "religious freedom" should be interpreted to allow women to decide for themselves whether to take contraception, rather than to allow their employers to decide for them.

Judy Waxman, vice president for health and reproductive rights at the National Women's Law Center, said the Supreme Court could take up the contraception mandate as soon as this winter. But she said the court will likely not strike down the entire policy -- it would probably instead decide on some narrow aspect of it.

"Some of these lawsuits are asking for the whole [contraception mandate] to be struck down, but the Supreme Court generally decides issues in the narrowest way that answers the question on the table," she said. "It could mean that they would make some more narrow deicision about whether the religious accommodation works and which group should get it."

Duncan said he thinks the Christian-owned Hobby Lobby is a perfect example of the dilemma that for-profit companies across the country face now that the government is requiring them to include birth control coverage in their insurance plans. "We think Hobby Lobby is an excellent vehicle for all these issues," he said. "It's the largest, most prominent business to have sued, and it's got a lot on the line."

 

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