‘Contraception mandate’ goes before SCOTUS

A Madison family business is at the forefront of a legal challenge the Supreme Court of the United States will conference over Nov. 26 – whether the Patient Protection and Affordable Care Act “contraception mandate” violates the religious liberties of company owners whose faith proscribes birth control.

The Roman Catholic owners of Grote Industries, which manufactures vehicle safety systems, objected to the Affordable Care Act’s mandate that employers provide universal access to contraception. Grote’s owners won a divided 7th Circuit Court of Appeals ruling Nov. 8 blocking enforcement of the mandate, the farthest-reaching holding among a host of cases rising through the federal judiciary.

“The Grote family has run its business for over a century and simply wants to earn a living consistent with its faith commitments and duties to God,” said Matt Bowman, senior counsel at the Washington, D.C.-based Alliance Defending Freedom, who successfully argued on behalf of the Indiana company owners before the federal appellate court.

“Obamacare imposes massive penalties on families for providing generous benefits just because those families refuse to sign on to the government’s anti-life, anti-pregnancy agenda,” Bowman said in an interview after the ruling.

The 7th Circuit opinion in two consolidated cases – William D. Grote III, et al. v. Kathleen Sebelius, et al., 13-1077, and Cyril B. Korte, et al. v. Kathleen Sebelius, et al., 12-3841 – is the first federal court opinion formally affirming the grant of a preliminary injunction barring enforcement of the mandate.

Other circuits have split, and at a conference Nov. 26, the Supreme Court will have before it cert petitions on these cases that also challenge the contraception mandate:

• Autocam Corp. v. Sebelius, 13-482, a 6th Circuit opinion affirming the District Court, which rejected standing on religious liberty claims for the Roman Catholic owners of a Michigan company who argued penalties under the mandate would have ruinous consequences for the business;

• Conestoga Wood Specialties Corp. v. Sebelius, 13-356, a 3rd Circuit ruling denying a preliminary injunction for Mennonite owners of a Pennsylvania maker of cabinet parts, and;

• Sebelius v. Hobby Lobby, 13-354, a 10th Circuit decision remanding denial of a preliminary injunction for owners of a crafts-store chain organized with express religious principles, but which sought to qualify the kinds of companies that may claim religious exemptions.

Bowman’s group also represents the Conestoga plaintiffs and believes the 7th Circuit’s recent decision is bound to have some bearing on the justices’ deliberations. “It demonstrates that the majority of courts have recognized religious freedom,” he said.

Court watchers believe that one or more of the challenges may be added to the cases to be heard in spring 2014. Bowman expects Grote also will be appealed to the U.S. Supreme Court.

All of the suits in some way invoke the Religious Freedom Restoration Act of 1993, but the majority of the 7th Circuit found not just that Act implicated, but agreed that the Grotes’ First and Fifth Amendment rights would be violated by the contraception mandate.

“The plaintiffs are not asking the government to pay for anything. They are asking for relief from a regulatory mandate that coerces them to pay for something – insurance coverage for contraception – on the sincere conviction that doing so violates their religion,” Circuit Judge Diane Sykes wrote in the majority opinion joined by Judge Joel Flaum. “They have made a strong case that RFRA entitles them to that relief.”

The majority held that the Grotes “have a direct and personal interest in vindicating their individual religious-liberty rights, even though the rights of their closely held corporations are also at stake.”

But in a dissent of more than 90 pages, Judge Ilana Rovner wrote that the ruling “represents a dramatic turn in free exercise jurisprudence” that could open the door to a host of challenges to federal regulations based on individual religious beliefs.

The opinion “bestows a highly personal right to religious exercise on two secular, for-profit corporations that have no facility of thought, conscience or belief,” Rovner wrote. “It deems the religious rights of the plaintiffs burdened by the contraception mandate without consideration of the indirect and minimal intrusion on their exercise of religion. And it disregards the extent to which the exemption from the mandate burdens the rights of the plaintiffs’ employees.”

Rovner said the majority’s holding hypothetically could prevent employees from obtaining embryonic stem-cell therapy; allow Christian Scientist business owners to severely restrict access to medical care pursuant to limits based on their beliefs; or deny coverage to same-sex couples even in states that permit such unions, if the corporation’s owners have a religious objection to same-sex marriage.

Johnsen

“You could write 20 more like that,” Indiana University Maurer School of Law professor Dawn Johnsen said of the cautionary hypotheticals. She acknowledges a personal feeling that the dissent is correct in the 7th Circuit opinion, but she said the majority opinion also was thorough and impressive.

Johnsen argues that because it’s the employee’s choice to use contraception rather than an employer’s, the employer’s religious liberties aren’t “substantially burdened,” as required under RFRA. “Given that indirectness, how attenuated that is, it would be a true slippery slope to find this to be a substantial burden,” she said.

The Supreme Court “has to resolve this very dramatic split among the circuits,” Johnsen said. “This, I’d say, is going to be a closely divided court and it’s very difficult to guess which way it’s more likely to go.”

Justices are likely to take at least one of the cases from the Nov. 26 conference, Johnsen said, but they also likely will cite and rely on the 7th Circuit holding. She said all the key issues can be reached in the cases already before the court. She believes it’s unlikely the court would delay acting on at least one of the current petitions.

“The main issues include the status of the corporation both in holding rights and in having standing to assert rights, and then (rights of) the owners of the corporation,” Johnsen said.

On those issues, the 3rd Circuit held in Conestoga that “a for-profit, secular corporation cannot engage in the exercise of religion” and its owners have no claim against the contraception mandate. A related Federal Circuit ruling, meanwhile, held that for-profit corporations may not challenge the law on religious grounds, but that companies organized differently with individual owners may, according to the 7th Circuit’s opinion.•