What’s Next In The Litigation Over The Obamacare Contraception Mandate?


Late last week a federal judge in Washington D.C. handed women another setback in the battle over the the birth control benefit in Obamacare, granting a Bible publisher’s request to temporarily block the requirement that any employee insurance plans cover contraception without a co-pay. 

Tyndale House Publishers is the world’s largest privately-held Christian publisher of books, Bibles and digital media. Tyndale is 96.5 percent owned by the Tyndale House Foundation, a non-profit religious organization. Tyndale House Publishers, however, operates as a for-profit enterprise with over 200 full-time employees. Nearly all the profits from the sale of Tyndale House Publishers products fund the group’s religious work worldwide.

In late October, Tyndale sued the administration, specifically objecting to the requirement that insurance plans cover emergency contraception and IUD’s that they claim will “cause the demise of an already conceived/fertilized human embryo” and argue that given the “draconian” penalties associated with failing to comply with the mandate which, they claim would drive them out of business. [Emergency contraception prevents fertilization and does not prevent implantation.]

The Obama administration argued that as a for-profit corporation Tyndale cannot, by definition, exercise religion within the meaning of either the Religious Freedom Restoration Act or the First Amendment, but that argument did not matter for now. U.S. District Judge Reggie Walton issued the temporary order, holding that the plaintiffs had successfully met their initial burden of persuasively arguing the coverage mandate “substantially burdens” the religious exercise rights of Tyndale House Publishers Inc. by imposing “considerable” financial penalties for failing to offer birth control coverage to its 206 full-time employees.

Like the other recent decisions to temporarily block the mandate, U.S. District Judge Reggie Walton here did not rule on the ultimate issue these lawsuits push, which is to greatly expand the protection of religious exercise freedoms to include corporate religious exercise rights because at the preliminary injunction stage he does not have to yet. As Brigitte Amiri, senior staff attorney for the American Civil Liberties Union’s Reproductive Freedom Project explained in an interview with RH Reality Check, courts seem to be granting these early orders as a safeguard first. “We’ve seen the courts say, essentially, there are hard legal questions here and when we get to the merits we get there.” 

Amiri and the ACLU filed amicus briefs in support of the mandate in the Weingartz Supply case in Michigan where a federal court also recently granted a similar injunction for a for-profit company and can see a definite trend.

“The strategy is to blanked the country with lawsuits and to create new law that would, basically, change the law to allow for religious discrimination in a very broad context. So far the court in Missouri got it right, but even in Colorado and Michigan the courts have made it clear that these rulings are to be read narrowly so as to only impact that specific plaintiff.”

The important point to remember is that these preliminary orders do not answer the ultimate issue of whether these for-profit companies have religious exercise rights, and if they do, whether those rights are substantially burdened by the contraception mandate. For that determination to happen first there must be a trial, or at least a summary judgment proceeding, which means discovery into the truth of these claims of burdens. As Amiri explained, this can offer some great opportunities for the Obama administration to show the weaknesses in these religious exercise claims.

“These companies are going to have to explain how their insurance benefits operate” said Amiri. “What portions of employee contributions go to premiums, for example. And the government will have an opportunity to put on its own experts to establish its compelling interest in eradicating discrimination against women in the employment sector, not to mention the public health benefit in broadening access to preventive care.”

That may be little comfort to the employees immediately affected by the federal court orders that now pepper the legal landscape. And if it wasn’t clear before it should be now: conservatives plan to challenge and litigate Obamacare just as they have done with abortion rights in an effort to whittle down as many of the protections as possible. To make matters worse religious extremists see this as an opportunity to explode beyond recognition First Amendment religious protections to create, effectively, a legal shield that would allow for-profit businesses to openly flout anti-discrimination laws. Finally, the rights carpet-bomb approach to litigation means the likelihood of the Supreme Court ultimately weighing in on these issues is all but certain.

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