Is Contraception the New Obamacare Battlefield?

Obama_healthcare_signatureMore than 60 separate court cases have been filed by individuals, companies, and organizations across the country arguing that the Affordable Care Act will force them to violate their sincerely held religious beliefs. Obamacare’s mandate that will bring insurance coverage to Americans via state-run and federally-run small business exchanges will require 20 different contraceptive methods to be included in the various plans sold on the online marketplaces.

In a case brought by the Christian owners of a chain of hobby and book stores, the Tenth Circuit Court of Appeals in Denver ruled that requiring certain contraceptives to be made available under the mandated health coverage of Obamacare would substantially burden their religious rights. But, while the court ruled that Oklahoma-based Hobby Lobby Stores and Mardel Inc., as well as its owners the Green family, had a valid claim under the Religious Freedom Restoration Act, a majority of judges on the court declined to approve an injunction that would allow the company an exemption from paying for contraceptive methods.

Instead, the court sent the case back to a federal judge to determine whether an injunction should be issued to protect the rights of those who find paying for contraceptive methods religiously offensive.

The company’s deadline to comply was July 1.

“We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm,” wrote Circuit Judge Timothy Tymkovich in his ruling, seen by The Christian Science Monitor. “But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction,” he added.

The Denver court’s 5-to-3 decision represents the first time an appeals court has examined the contraception provision of Obamacare.

Of the numerous contraceptive methods required to be offered under Obamacare, the company objects to four — two varieties of IUDs and the emergency morning after pills, known as Plan B and Ella. They object to these forms of contraception because they believe that life begins when an egg is fertilized, but the company and its owners are willing to pay for their employees to use the other 16 contraceptive methods that prevent fertilization. They say that the government mandate requires them to subsidize that harm.

The Obama administration has refused to issue an exemption on this basis, and government lawyers have argued that the contraceptive mandate is no burden on religious relief because it is up to an individual employee to choose which method, if any, to use.

Hobby Lobby has more than 500 stores employing 13,000 full-time workers, and Mardel operates 35 bookstores employing 400 workers. If they refuse to pay for contraceptives as part of the mandatory coverage, they face fines of up to $1.3 million per day or $475 million per year. According to the court, if the companies drop employee health insurance altogether, they will face penalties of $26 million per year.

In his opinion, Judge Tymkovich noted that government lawyers have argued that the plaintiffs cannot successfully argue a claim under the Religious Freedom Restoration Act if the alleged government coercion of religious believers depends on the independent action of third parties, meaning the employees. The majority of judges rejected that assessment. “Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief,” Tymkovich said.

“No one disputes in this case the sincerity of Hobby Lobby and Mardel’s religious beliefs,” he said. “And because the contraceptive-coverage requirement places substantial pressure on Hobby Lobby and Mardel to violate their sincere religious beliefs, their exercise of religion is substantially burdened within the meaning of RFRA,” he wrote.

Tymkovich added that government lawyers have argued that the government’s interest in mandating insurance coverage is to ensure public health and gender equality. But, the judge said the government has not explained “how those larger interests would be undermined by granting Hobby Lobby and Mardel their requested exemption.”

“Hobby Lobby and Mardel ask only to be excused from covering four contraceptive methods out of twenty, not to be excused from covering contraception altogether,” the judge said. “The government does not articulate why accommodating such a limited request fundamentally frustrates its goals.”

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