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Contraceptive Coverage Debate Will Likely Reach Supreme Court

Contraceptive Coverage Debate Will Likely Reach Supreme Court

January 28, 2013 — The disparate rulings in the dozens of lawsuits filed against the federal contraceptive coverage rules suggest that the issue ultimately will be resolved by the Supreme Court, the New York Times reports. The rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer contraceptive coverage to their workers without added cost (Bronner, New York Times, 1/26).

Plaintiffs in the cases range from religiously affiliated institutions -- such as Catholic universities, hospitals and charities -- to owners of private, for-profit businesses. Although religious entities that solely employ and serve people of their own faith -- such as houses of worship -- are exempt from the rules, other religiously affiliated organizations will have to comply with a modified rule that has not yet been released.

Rulings To Date

In the lawsuits filed by religiously affiliated groups, courts have mostly decided that it would be premature to rule on the issues involved until the government finalizes accommodations for religious entities. Government attorneys have said an announcement is expected by the end of March.

In the cases involving private businesses, judges have granted temporary injunctions to businesses in nine of 14 cases they have heard, according to the Becket Fund for Religious Liberty, which is representing several of the plaintiffs (Zoll, AP/U-T San Diego, 1/26).

It is uncertain when the cases could reach the high court, the Times notes. A half dozen could be heard in lower courts by this summer, which would be enough time for inclusion on the high court's docket next term (New York Times, 1/26).

Contraceptive Coverage Challengers Form 'Unlikely Coalition'

The litigation involves a diverse coalition of groups, ranging from not-for-profit Catholic archdioceses to retail chains such as Hobby Lobby and state attorneys general, Roll Call reports.

The Becket Fund, a Washington, D.C.,-based group, has tried to focus the debate on "religious liberty," rather than abortion, although some of the plaintiffs oppose the rules because they consider certain forms of birth control to be the equivalent of an abortion.

"I think you're seeing this unique coalition coalescing on this issue because of the scope of what's at stake," said Jay Sekulow, chief counsel at the American Center for Law and Justice.

Groups that support the rules include the American Civil Liberties Union and numerous women's advocacy groups and providers, including the National Women's Health Network, the Guttmacher Institute and Physicians for Reproductive Choice and Health (Newlin Carney, Roll Call, 1/24).

Brigitte Amiri, a senior staff attorney at ACLU, said, "We don't think that religious liberty claims can be used as a way to discriminate against women employees" (AP/U-T San Diego, 1/26).

Judge Throws Out Suit by Washington, D.C., Diocese

In related news, U.S. District Judge Amy Berman Jackson on Friday rejected a lawsuit filed by the Archdiocese of Washington and four other Catholic not-for-profits challenging the contraceptive coverage rules.

Jackson ruled that the challenge was premature. "If after the new regulations are issued, plaintiffs are still not satisfied, any challenges that they choose to bring will be substantially different from the challenges in the current complaint" (Zajac, Bloomberg, 1/25).

Produce Companies File Latest Suit

Meanwhile, the owners of two Ohio-based produce companies on Thursday filed the latest lawsuit challenging the contraceptive coverage rules. The suit was filed in the U.S. District Court for the District of Columbia.

The Catholic owners of Freshway Foods and Freshway Logistics -- Francis and Philip Gilardi -- argue that complying with the rules would require that they "violate their religious beliefs and moral values" or face "ruinous" fines of nearly $40,000 per day for both companies (Norman, CQ HealthBeat, 1/25).