Employer Contraception Mandate Headed to Court for Ban Ruling

By | May 22, 2013

The U.S. law requiring employers to provide health insurance coverage for birth control is set to come before an appeals court in cases brought by two businesses whose owners say they operate according to Catholic doctrine.

The businesses, a construction firm from southwestern Illinois and an auto-parts maker in southeastern Indiana, are scheduled today to ask the U.S. Court of Appeals in Chicago for an order barring enforcement of the measure while they challenge its constitutionality in lawsuits.

“The mandate requires plaintiffs to take actions that violate their religious faith in order to avoid ruinous penalties for non-compliance,” the construction firm’s lawyers said in a court filing.

The requirement stems from President Barack Obama’s 2010 Patient Protection and Affordable Care Act, which is intended to create almost-universal health insurance coverage in the U.S.

To meet that objective, the act requires most people to obtain coverage starting next year. It also expands the availability of the federal-state Medicaid program and compels businesses with more than 50 full-time workers to offer coverage.

That insurance must include at no extra cost to the employee all forms of Federal Drug Administration-approved contraception as prescribed by a health-care provider.

Roman Archdiocese

The provision sparked lawsuits from the Roman Catholic Archdioceses of New York and Washington, the Catholic University of America, Notre Dame University and for-profit businesses in Michigan, Missouri and elsewhere.

In January, a U.S. judge in Washington threw out the archdiocese’s challenge there, concluding it was premature, a month after a federal judge in Brooklyn, New York, said the case there could go forward.

A St. Louis federal court judge threw out one Catholic businessman’s challenge in October, while a U.S. judge in March granted a reprieve from the law to Domino’s Pizza chain founder Tom Monaghan and his property management company, Domino’s Farms Corp., until his lawsuit is resolved.

The contraception requirement violates the U.S. Constitution’s guarantee of freedom of religion and the federal Religious Freedom Restoration Act of 1993, according to Korte & Luitjohan Contractors Inc., based in Highland, Illinois, and its controlling owners, Cyril and Jane Korte, and Madison, Indiana- based Grote Industries Inc. and its family owners.

Preliminary Orders

Lower-court judges in each case rejected the businesses’ requests for preliminary court orders exempting them from compliance with the law, ruling they weren’t likely to prevail on the merits of their claims. The appeals court then ruled that the two businesses will remain exempt from the law until it renders a decision on their request for an injunction.

Congress “has long distinguished between religious organizations and for-profit secular corporations,” the U.S. Justice Department said in a March 1 filing opposing the Kortes’ request. “No court has ever found a for-profit company to be a religious organization for the purposes of federal law.”

The Kortes told the lower court their company would face “ruinous” penalties of about $730,000 a year for failure to obey the mandate. The Grotes, too, said they faced irreparable harm in the form of fines and penalties for abiding their religious beliefs and defying the law.

Neither the Kortes nor the Grotes hire their workers based on their religions, and those employees aren’t required to share their beliefs, the government said in its filings.

Federal law bars companies from using religion as a basis for discriminating in the terms or conditions of employment unless they otherwise qualify for a religious exemption from the federal Civil Rights Act of 1964, the U.S. said.

“Plaintiffs cannot circumvent this distinction by asserting that the contraceptive-coverage requirement is a substantial burden,” the U.S. said.

The mandate doesn’t compel either family, as individuals, to do anything, only their legally separate businesses, according to the U.S.

The cases are Korte v. Sebelius, 12-3841 and Grote v. Sebelius, 13-1077, U.S. Court of Appeals for the Seventh Circuit (Chicago).

©2013 Bloomberg News

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