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Contraception clash

New Obama policy in works aims to halt lawsuits


By Joe Carlson
Posted: December 22, 2012 - 12:01 am ET
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Critics of the federal rule mandating insurance coverage for contraceptives are winning some battles in courts across the country, but Obama administration officials are crafting a new policy that would defuse the concerns driving the lawsuits.

Stemming from a broad guarantee of preventive healthcare services in the reform law, HHS classified all Food and Drug Administration-approved contraceptives as preventive healthcare, which meant birth-control pills and the morning-after pill must be included in most employer health plans without copays or deductibles.

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At least 41 lawsuits have been filed challenging the rule. While some have been dismissed for lack of standing, two Catholic healthcare providers won a victory in federal district court in Brooklyn, New York, on Dec. 4 when a judge ruled that Catholic Health Services of Long Island and ArchCare could not depend on HHS' as-yet unpublished compromise rule to protect them from a regulation that is already on the books.

U.S. District Judge Brian Cogan denied HHS' motion to dismiss the lawsuit, writing, “There is no, 'Trust us, changes are coming' clause in the Constitution.”

Government lawyers, however, have made similar claims in other lawsuits and won. Several courts have agreed and tossed out cases deemed premature because the litigants couldn't have been damaged by a rule that hasn't been published.

James Blumstein, a professor of constitutional and health law at Vanderbilt Law School in Nashville and an expert on the constitutionality of the reform law, said First Amendment claims may not be successful in an eventual U.S. Supreme Court hearing because the constitution does not require “carving out a safe harbor” from existing laws to accommodate religious beliefs.

Blumstein said opponents might have more success using the Religious Freedom Restoration Act, which is intended to remove burdens to the free exercise of faith. The law requires the federal government to prove it has a compelling interest in passing laws that affect religious beliefs.

The rule mandating contraception coverage by employers went into effect Oct. 1 for private businesses, but was delayed until October 2013 for religious organizations, including Catholic health systems, who said arranging for their workers to get birth control and sterilizations violated the strictures of their faith. Organizations that don't comply will be subject to penalties of $100 a day, per employee.

Federal appeals courts in Washington and St. Louis have issued rulings favorable to the rule's opponents, but on Dec. 20, the 10th U.S. Circuit Court of Appeals in Denver declined to grant an injunction requested by Hobby Lobby. The national craft supplies retailer sought to escape the mandate for coverage effective Jan 1.

“Religious freedom of employers—that's what's at stake here,” said Edward White III, a lawyer with the American Center for Law and Justice, which has filed several lawsuits and friend-of-the-court briefs opposing the contraception rule. “You're requiring a business to negotiate an insurance contract, to pay premiums, to do all of the work to provide something that is immoral to the employer.”

White said the rule was akin to forcing kosher butcher shops to sell nonkosher meat.

But supporters of the rule say they are victims of religious discrimination under the old system, because employers' beliefs are forced on them through the design of health plans that exclude legitimate healthcare services.

Judy Waxman, vice president for health and reproductive rights at the National Women's Law Center in Washington, said the First Amendment gives all individuals the right to practice their religion as they see fit. “The employer can practice his or her religion, go to church, go to rituals, and the same with employees,” she said. “What cannot happen is the employer imposing his religion on his employees. And that is what these lawsuits seek to do.”

Waxman also noted that it will be interesting to see whether the courts will rule on the question of whether a corporation can even have religious views.

Lawyers for the Obama administration said in hearings before the U.S. Circuit Court of Appeals in Washington that HHS will not enforce the requirement in its current form against two religious colleges or “similarly situated” organizations. Rather, officials intend to craft a different rule before August 2013 by issuing a notice of proposed rulemaking this spring.

It's not clear exactly what the new rule will say.

Last March, HHS proposed a new rule that would allow religious organizations to offer contraceptive coverage through an insurance plan without having to pay the premiums to support the services. In theory, that would allow employers to follow the law without financially supporting services to which they object.

Emily Hardman, an attorney and the communications director for the religious-liberty law firm the Becket Fund, said the idea seemed like a “shell game” to religious employers, who would ultimately pay for the services indirectly.

“That money has to come from somewhere. They are going to pay for them, whether they do it in a shell game or not,” Hardman said. “Right now, there has been no viable offer on the table to satisfy the conscience of our clients.”


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