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Wave of Contraceptive Coverage Suits Heading to Courts of Appeal in Coming Weeks

Wave of Contraceptive Coverage Suits Heading to Courts of Appeal in Coming Weeks

May 22, 2013 — In the next three weeks, four separate appeals courts will hear a barrage of lawsuits filed by private businesses against the federal contraceptive coverage rules, Politico reports. Backers of the suits hope the issue will reach the U.S. Supreme Court by this fall (Smith/Haberkorn, Politico, 5/22).

The contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148), require that most health plans cover contraceptive services without copayments or other added costs. Religious entities such as churches and other houses of worship are exempt from the requirements.

In February, the Obama administration proposed an accommodation for other religiously affiliated employers that would ensure they do not have to pay for contraceptive coverage, but their health plans must provide it directly to beneficiaries at no cost. However, the accommodation was not extended to for-profit businesses (Women's Health Policy Report, 5/13).

Upcoming Cases

On Wednesday, the 7th U.S. Circuit Court of Appeals will hear arguments from two for-profit companies that oppose offering contraceptive coverage because they claim some birth control methods are the equivalent of an abortion. Hobby Lobby, the largest company to file suit, will argue a similar case before the 10th U.S. Circuit Court of Appeals on Thursday, and two other companies will present oral arguments in different appeals courts by early June.

The companies all argue that offering contraceptive coverage violates their religious beliefs and that failing to comply with the rules would result in millions of dollars in fines. The businesses say they should receive an exemption, similar to the accommodation given to certain not-for-profit religious entities.

Kyle Duncan -- general counsel for the Becket Fund for Religious Liberty, which is representing Hobby Lobby -- said the company's suit centers on a key question: "Does the mere fact they they're a profit-making business ... negate their right to freedom of exercise of religion?"

The American Civil Liberties Union -- which has weighed in on several of the lawsuits -- argues that the employers do not have a direct connection with the contraceptives they oppose. "The company is buying an insurance plan that covers a whole host of services and [is] then used by someone else to engage in the conduct that is objectionable," said Louise Melling, ACLU's deputy legal director, adding, "It's too attenuated."

Supreme Court Prospects

Legal experts on both sides of the debate agree that the for-profit companies' cases are more likely to reach the Supreme Court than challenges filed by not-for-profit groups, which are covered by a safe-harbor agreement issued by the Obama administration until final rules are put in place this summer.

The appeals courts could rule sometime this summer, after which the losing party would have 90 days to petition the Supreme Court to review the case. The Supreme Court is more likely to consider taking one of the cases if the lower courts issue conflicting opinions, Politico notes (Politico, 5/22).