Feb 10 (Reuters) - Three religious groups will
continue to pursue legal challenges to the government regulation
requiring employers to provide birth-control coverage to
employees, in spite of an announcement on Friday that the
administration will scale back the controversial healthcare
The lawsuits, filed by two religious colleges and a Catholic
television network, accuse the government of violating their
freedoms of speech and religion under the U.S. Constitution. Two
were filed last year and the third was filed on Thursday.
The Becket Fund for Religious Liberty filed the suits on
behalf of Belmont Abbey College, Colorado Christian University
and Eternal Word Television Network. The groups accused the
government of forcing them to support contraception,
sterilization and abortion in violation of their religious
beliefs or face steep fines. The Catholic Church opposes most
methods of birth control.
The litigation is in response to a regulation issued by the
Obama administration last August, which requires employers to
provide free birth control as a benefit in their healthcare
plans under the Affordable Care Act of 2010. The announcement
triggered an outcry from Catholic Church leaders, Republicans
and other social conservatives who criticized the regulation as
an attack on their religious freedom.
While twenty-eight states have laws requiring insurers to
cover prescription medications to the same extent as other
medications, the federal government has never before required
employers to provide free birth control coverage in their health
The original regulation exempted churches and other houses
of worship from covering contraception on the basis of religious
objections. The latest policy shift now grants the same
accommodation to other religious institutions, like hospitals,
schools and charities. Instead, the insurance companies must pay
the cost of the birth control coverage. As a result, no
religious employer will have to pay for or provide contraceptive
services, Obama said in his speech.
Hannah Smith, a lawyer at the Becket Fund, said that the
latest policy shift has little bearing on the lawsuits, which
Many religious organizations self-insure, and would still be
required to provide contraception coverage under the new rule,
she said. It is also unclear which religious employers would
qualify for the exemption and whether it would cover for-profit
organizations and individual employers.
"Religious organizations may still object to being forced to
pay money to an insurance company which will turn around and
provide contraception to its employees for free," she said.
The Department of Justice did not immediately respond to a
request for comment.
Michigan Attorney General Bill Schuette has pledged his
support to the religious groups, agreeing to draft a supporting
brief for the Becket Fund's lawsuits. Schuette said the latest
revision doesn't change his support for the suits. "It was no
fix and is still an affront to the Constitution," he said.
Priests for Life, a Catholic pro-life organization based in
New York, is also preparing to file a similar suit against the
government early next week. Charles LiMandri, a lawyer for the
group, said the latest compromise doesn't change anything.
"It's still employers having to provide a benefit that's
objectionable to their conscience," LiMandri said.
In order to prevail on their religious liberty claim, the
groups will have to prove that the new law is a heavy burden on
their religious belief. If so, then the government will have to
show that the regulation serves a compelling government interest
in the least oppressive way possible.
Eugene Volokh, a law professor at University of California
Los Angeles, said different courts could reach different
conclusions on those questions. He said the latest revision to
the rule doesn't necessarily defeat the religious groups'
claims, which he described as plausible.
"I suspect that many institutions will find the compromise
inadequate, because they'll still see the new rule as requiring
complicity with sin," Volokh said.
But others thought the policy shift spelled the end of the
Rev. Thomas Reese, a Catholic priest with Georgetown
University's Woodstock Theological Center, who opposed the
previous version of the regulation, said Obama's new proposal
solves the religious liberty issue because religious employers
no longer have to pay for contraception coverage.
Sister Carol Keenan, the president of Catholic Health
Association and an outspoken critic of the original regulation,
issued a statement on Friday applauding the compromise for
"fixing the issues that needed to be fixed."
Marci Hamilton, a law professor at the Benjamin N. Cardozo
School of Law, said the lawsuits face a steep uphill battle,
particularly with the new accommodations.
"There is no constitutional right to impose one's religious
beliefs regarding contraception on nonbelievers through a
private or public healthcare system," she said.
The challengers also face the burden of proving that the
issue is ripe enough for a lawsuit. Until the government
finalizes the rule, no one can bring litigation, said Laura
MacCleary of the Center for Reproductive Rights, adding that
courts would likely dismiss the suits.
Few court cases have addressed similar complaints before. In
a 1990 landmark Supreme Court case, Employment Division v.
Smith, the Supreme Court ruled that a state could deny
unemployment benefits to a person fired for using peyote, even
though the drug was part of a Native American religious ritual.
The court found that the state was not violating users'
religious liberty because the rule applied evenly to everyone.
In reaction to that decision, Congress passed the Religious
Freedom Restoration Act, which made it more difficult for the
government to pass laws that burden religion, requiring a strong
justification for the law. All three suits are pursuing claims
under that act.
(Reporting By Terry Baynes; Additional reporting by James
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