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Two types of HHS mandate cases are at different points in legal process
Catholic News Service

WASHINGTON — The Supreme Court is involved in two types of issues related to claims by employers who say they should not have to provide coverage of contraceptives in their workers' health insurance plans because this violates the employers' faith-based moral objections.

Both matters revolve around requirements in the Affordable Care Act that employer-provided health insurance include coverage of contraceptives, sterilizations and other types of birth control opponents say can induce an abortion.

The law, the main provisions of which took effect Jan. 1, includes rules that allow an exemption for some religious employers that fit certain criteria. Other nonprofit, faith-based institutions that are not exempted because they don't fit the criteria have the option of signing a waiver, which the government calls an accommodation and directs a third party to provide to their employees the contraceptive coverage they find objectionable.

Some religious institutions, including the Catholic Health Association, have accepted the exemption and waiver options. CHA in July said it would help its member organizations comply with the accommodation. Others say the provisions don't adequately protect religious rights and have sued the federal government.

The Becket Fund, a religious liberty law firm that represents many of the plaintiffs who have sued the federal government over the mandate, counts 91 lawsuits representing about 300 plaintiffs. Half are by for-profit employers, half by nonprofits.

Because the final rules for how the health care law applies to nonprofits weren't released until June 28, legal challenges by nonprofit entities are many months behind the lawsuits filed on behalf of for-profit employers, who are not covered by any of the exemption options.

While many of the nonprofit suits -- such as that by the Little Sisters of the Poor -- have been through the federal courts for an initial ruling about whether the employers must comply with the mandate while the legal cases proceed, none have yet worked their way through lower courts to the point of appeal to the Supreme Court on the merits of the challenges.

Thus, in the first cases to reach the Supreme Court on the nuts-and-bolts of the legal challenges, on March 25 the court will consider the claims of two for-profit employers who say they should not be required to provide coverage to which the owners have moral objections.

Those cases, brought by Hobby Lobby Stores, and Conestoga Wood Specialties, challenge the contraceptive insurance mandate on behalf of owners who say it infringes on their religious rights to have to provide coverage that they believe is immoral. Both companies are privately held and family owned.

At issue in both cases will be First Amendment arguments that the contraceptive mandate violates the owners' Free Exercise rights as well as their rights under a 1993 law, the Religious Freedom Restoration Act.

In Sebelius v. Hobby Lobby Stores, the Green family won a ruling by the 10th U.S. Circuit Court of Appeals that said their chain of more than 500 arts-and-crafts stores and Mardel, a chain of 35 Christian bookstores, could proceed with seeking an injunction protecting the companies from meeting parts of the contraceptive mandate issued by the Department of Health and Human Services as part of the health care law.

The Christian family that owns Hobby Lobby does not object to covering contraceptives for its employees. It already does that; they object to being required to cover birth control drugs that are considered abortifacients.

The second case, Conestoga Wood Specialties v. Sebelius, is an appeal by the Hahn family, the Mennonite owners, of a 3rd U.S. Circuit Court of Appeals ruling that they had to comply with the contraceptive coverage requirement. The circuit court ruled that as a for-profit, secular corporation, Conestoga Wood and its owners are not protected by the Free Exercise clause of the First Amendment.

As of Jan. 28, dozens of entities with an interest in the outcome of the cases had filed "amicus," or friend-of-the-court, briefs raising various legal arguments. Those included the U.S. Conference of Catholic Bishops and another by a group of 67 Catholic theologians and ethicists.

The legal claims being made by the Little Sisters of the Poor echo many of the First Amendment legal arguments raised in the Hobby Lobby and Conestoga Wood cases.

But they were not what the Supreme Court court addressed in its Jan. 24 action to continue an injunction. That three-sentence order issued by the court as a whole continued an emergency injunction granted Dec. 31 by Justice Sonia Sotomayor.

The order addressed only the issue of whether the Little Sisters must submit required paperwork to qualify for an exemption from the contraceptive mandate. Their co-plaintiffs are Christian Brothers Services and Christian Brothers Benefits Trust, which manages the religious order's benefits.

The Supreme Court's order said the federal government is enjoined from enforcing the provisions being challenged, pending final resolution of the case in the 10th U.S. Circuit Court of Appeals. The sisters' challenge to the mandate itself now goes back to the 10th Circuit.

The Supreme Court's action means that until the 10th Circuit rules, the employers in the case need only inform HHS in writing that they are "nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."

The Supreme Court's order said specifically it was not addressing the merits of the case itself, only the injunction issue.

The Becket Fund, which represents the Little Sisters of the Poor in their lawsuit and plaintiffs in other suits, describes the Little Sisters case as a class action representing more than 400 Catholic institutions whose benefits are managed by the Christian Brothers. A class action must, however, be affirmed as such by a court.

Legal analyst Lyle Denniston, writing for the SCOTUSblog, a blog on the Supreme Court, said Jan. 27 that lower courts have not approved the lawsuit as a class action, and that was not addressed by the Supreme Court. He noted that the Justice Department, which is defending the federal government, has said it would not object if other employers sought similar injunctive relief.

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