Behind the legal challenge to Obamacare's contraception mandate

http://www.theguardian.com/law/2014/mar/24/hobby-lobby-sureme-court-obamacare-contraception

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When the US supreme court hears a challenge to the Affordable Care Act's contraception requirement on Tuesday, the owners of dozens of for-profit companies will be hoping the justices side with their belief that it infringes on their religious freedom.

The highly anticipated hearing concerns cases brought by crafts company Hobby Lobby and Conestoga Wood, a cabinet-making business. They are two of the 49 for-profit companies to have filed suits challenging the ACA requirement that says preventive health services, and therefore birth control, should be provided without out-of-pocket costs under insurance plans.

Among the companies’ reasons for objecting: a fundamental opposition to birth control; a belief that some forms of birth control are akin to abortion; and the claim that being forced to cover birth control is the same as being ordered to buy your employees Jack Daniel’s whiskey.

“The employers are not objecting to their employees’ private decision to use these drugs, they are objecting to being forced by the government to pay for insurance plans that facilitate or contribute to these decisions,” said the Thomas More Law Center, in an amicus brief (pdf). The law firm has filed 11 federal cases, representing 33 plaintiffs, against the contraception requirement.

Most of the cases challenging the requirement have been granted primary injunctions or their cases have been stayed in smaller courts pending the results of the supreme court decision. The plaintiffs, primarily male business owners with Christian and Catholic affiliations, believe providing the coverage is a burden to their religious freedom.

Some of these companies, like Joe Holland Chevrolet and O'Brien Industrial Holdings, already provide insurance that covers contraception. O’Brien said the company’s coverage was “inadvertent”, according to the St Louis Post Dispatch. Joe Holland Chevrolet dropped its request for a preliminary injunction once its coverage was discovered.

Catholic business owners that oppose the requirement, like Triune Health Group, fundamentally oppose the use of birth control. "We're very clear about our beliefs. If people make this a battle over contraception, they're missing the entire point," Triune co-owner Christopher Yep told The Chicago Tribune. "In this country, you have a right to act in accordance with your beliefs."

In 2012, Crain's Chicago Business awarded Triune first place place for "best place to work for women" in the area.

Other company owners don’t oppose contraception, but believe IUDs, the morning-after pill and the week-after pills cause abortion – a factually unsound and misleading claim according to health experts.

Mark Taylor, the president and CEO of the Christian publishing company Tyndale House, said the company specifically objects to providing access to the morning-after pill, the week-after pill and IUDs. Taylor, whose company’s best known title besides the Bible is the Left Behind series, told Medill Reports, the Northwestern University graduate journalism school paper: “They [the government] are forcing us to do something that we feel is morally wrong, or they’re going to charge us such huge fines that, over time, it would put us out of business.”

One of the most spirited explanations for why for-profit business owners don't believe they should offer insurance that covers birth control came from Michael Potter, the CEO and founder of natural food company Eden Foods. Potter told reporter Irin Carmon: “I’ve got more interest in good quality long underwear than I have in birth control pills."

Eden Food’s case is in the supreme court, but not scheduled for argument. Potter said he was suing “because I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.”

The sides of the case

According to the National Women’s Law Center (pdf), the groups launching lawsuits against the contraceptive requirement include: 49 for-profit companies, 55 non-profit companies, four cases involving both and two other groups. Missouri representative Paul Wieland also brought a case against the provision, but it was dismissed. Officials from seven states – Nebraska, South Carolina, Michigan, Texas, Florida, Ohio and Oklahoma– also unsuccessfully attempted to challenge the case.

The Obama administration is working to create rules that accommodate the non-profit groups’ concerns, but still provide contraceptive coverage to employees. Whether the for-profit companies get similar exceptions is up to the supreme court.

Supporters of the contraceptive coverage requirement have filed 23 amicus briefs in the supreme court, including one filed by more than 20 medical organizations including: the American Academy of Pediatrics, the American Nurses Association and the National Physicians Alliance.

Thirteen states and the District of Columbia also support the contraceptive coverage requirement: California, Massachusetts, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Rhode Island, Oregon, Vermont and Washington.