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Supreme Court to hear challenge to birth-control drugs

Published: Tuesday, Nov. 26, 2013 1:00 p.m. CDT

WASHINGTON — The Supreme Court on Tuesday agreed to hear another legal challenge to President Barack Obama’s health care law, this time to decide whether a corporation can refuse to pay to cover birth control drugs that violate the religious beliefs of the firm’s owners.

At issue is a growing clash between some Christian employers who object to some contraceptives they consider “abortion-inducing” and potentially millions of female workers who can benefit from free birth control.

The case also calls on the court to decide whether corporations have religious rights similar to the free-speech rights that were upheld in the Citizens United decision in 2010.

Besides requiring most employers to provide health insurance, the Affordable Care Act mandates that the insurance cover “preventive services” at no cost to the employee. That means cancer screening and other tests, but also what federal rules define as the “full range” of approved contraceptives, including emergency contraceptives such as so-called morning-after pills.

When Catholic bishops objected to that requirement, the White House agreed to exempt “religious employers,” including churches, from the mandate. The administration also said religiously affiliated schools, colleges and hospitals could avoid paying directly for such benefits. Their insurers were told to cover the cost.

But the administration has refused to extend the exemption to cover private, for-profit corporations whose owners voice religious qualms.

Dozens of private employers have filed suits seeking an exemption from the contraceptive mandate. They include David Green, founder of the Hobby Lobby chain of crafts stores based in Oklahoma City, who brought the suit which is now headed for the high court.

The Green family, which also owns the Mardel chain of Christian bookstores, says they believe that life begins at conception, and they object to paying to cover morning-after and week-after pills. The Greens are willing to cover other standard contraceptives for their more than 13,000 full-time employees, their lawyers say.

Their case does not turn on the Constitution and its protection for the “free exercise” of religion. Instead, they argued that the “contraceptive mandate” violates their rights under the Religious Freedom Restoration Act of 1993.

That law was intended to overturn the high court’s earlier refusal to give “religious objectors” a constitutional exemption from ordinary laws. It says the government “shall not substantially burden a person’s free exercise of religion,” unless doing so furthers a “compelling” interest.

Responding to this claim, Obama administration lawyers argued that although individuals have religious beliefs, a “for-profit corporate employer” does not and may not ignore laws that protect the rights of its employees.

A federal judge in Oklahoma rejected the claim from the Hobby Lobby stores, but in June, the U.S. 10th Circuit Court of Appeals in Denver said the company was entitled to be exempt from the “contraceptive mandate.” The appeals court judges said the requirement would put a significant burden on the religious rights of the Green family.

“Hobby Lobby and Mardel are not publicly trade corporations; they are closely held family businesses with an explicit Christian mission,” Judge Timothy Tymkovich wrote for a 5-3 majority.

Violating the mandate to provide full contraceptive coverage would cost an employer $100 per day per worker, the judge said. And because Hobby Lobby has 13,000 employees, that would come to $1.3 million per day, he said.

“Accommodating the two companies in this case does not undermine the application of the contraceptive-coverage requirement to the vast number of employers without religious objections,” he added.

Earlier this month, U.S. appeals courts in Chicago and the District of Columbia also ordered the government to give exemptions for private employers based on their religious objections to contraceptives.

U.S. Solicitor General Donald Verrilli appealed and urged the Supreme Court to reverse the ruling in the Hobby Lobby case.

The ruling “would transform the Religious Freedom Restoration Act from a shield for individuals and religious institutions into a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws,” Verrilli said.

The justices are expected to issue a ruling in the case of Sebelius vs. Hobby Lobby Stores by late June. If the justices decide the government may not enforce the “contraceptive mandate” against the company, the ruling would likely apply to other family-owned businesses that claim similar religious objections.

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