WASHINGTON — The next legal challenge to the Affordable Care Act is moving quickly to the high court, and bringing potent questions about religious freedom, gender equality and corporate “personhood.”
The issue is the health-care law’s requirement that employers without a specific exemption must provide workers with insurance plans that cover a full range of birth-control measures and contraceptive drugs.
Inclusion of the no-cost contraceptive coverage for female workers has always been a controversial part of the legislation. It has now sparked more than 40 lawsuits around the nation involving more than 110 individuals, colleges, hospitals, church-affiliated nonprofits and private companies.
The cases involving those with religious affiliations are in limbo, as the Obama administration works on regulations that might provide a compromise. In a case involving two such institutions — Wheaton College in Illinois and Belmont Abbey College in North Carolina — a panel of the U.S. Court of Appeals for the D.C. Circuit is requiring administration officials to report by mid-February about the new rule, which is to be issued by spring.
At the same time, “the business cases are moving quickly,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, one of the groups coordinating the challenges to the law. Duncan said he thinks the cases will be decided in lower courts in plenty of time for the Supreme Court to decide whether to review the issue in its term that begins in October.
By Duncan’s count, there are 14 cases filed by business owners who say the law forces them to choose between running their companies and following their religious beliefs. In nine of those cases, courts have issued injunctions until the conflicts can be decided on their merits.
The cases differ by what the business owners say they are willing to provide — some say all contraceptives would violate their religious beliefs, others object only to abortifacients such as the “morning-after pill” and intrauterine devices. But all rely on protections in the First Amendment regarding free exercise of religion and in the Religious Freedom Restoration Act (RFRA).
The 1993 act prohibits the federal government from imposing a “substantial burden” on a person’s exercise of religion unless there is a “compelling governmental interest” and the measure is the least-restrictive method of achieving the interest.
No court of appeals has reached the merits of the challenges, but two — the 7th and 8th circuits in Chicago and St. Louis respectively — have granted business owners injunctions, and two — the 6th in Cincinnati and the 10th in Denver — have denied them.
And along the way, those decisions give a pretty clear indication of the fight ahead.
The most promising for the challengers is a ruling by a three-judge panel of the 7th Circuit. Cyril and Jane Korte, owners of K & L Contractors, said the new law offends their Roman Catholic beliefs. They wanted to replace the insurance program they offered their workers, which they found provided contraceptive services, with one that did not.
The Kortes made their main challenge under RFRA. The government opposed, saying that, among other things, RFRA did not apply to corporations, and that whether their employees took advantage of contraceptive services had no impact on the Kortes’ practice of religion.
The panel split 2 to 1 for the Kortes. “The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it,” wrote Circuit Judges Joel Flaum and Diane Sykes in granting the couple an injunction.
They suggested the corporation had rights under RFRA by citing the Supreme Court’s decision in Citizens United v. Federal Election Commission, which said corporations at least had political speech rights under the First Amendment.
The judges said it didn’t matter that the employees would be the ones to make use of the covered contraceptives. “The religious liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not — or perhaps more precisely, not only — in the later purchase or use of contraception or related services.”
Circuit Judge Ilana Diamond Rovner disagreed. “What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object,” she wrote. If that were right, she added, what limits might apply to employers limiting coverage.
That is essentially what judges in the 10th Circuit found regarding the company Hobby Lobby, which has 500 stores in 41 states. “It is by God’s grace and provision that Hobby Lobby has endured,” founder and CEO David Green said in a statement.
But the judges in the Hobby Lobby case said that Green’s exercise of religion was not affected by the decisions of his workers. It is only after a “a series of independent decisions by health care providers and patients” that Green’s health care plan might subsidize an activity to which he objects, the court said.
Hobby Lobby’s case briefly reached the Supreme Court, where Justice Sonia Sotomayor, as the justice responsible for that circuit, turned down its request for an injunction. The Supreme Court’s standards for such grants are more demanding than those of appeals courts, she said.
And she noted that the question of whether corporations are covered by RFRA has not been considered by the high court.
The legal battles have mobilized forces on both sides. The National Women’s Law Center filed a brief in one of the cases that said the contraceptive requirements “further the compelling governmental interests of safeguarding public health and promoting gender equality in the least restrictive means possible.”
The center’s senior counsel, Gretchen Borchelt, said in an interview that an employer should have no more right to make health care choices for its workers than it could claim in telling them how to spend their paychecks.