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Church, stock photo. REUTERS Eric Gaillard

Religious groups committed to contraception suits

2/10/2012 COMMENTS (0)

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 rule.

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 insurance plans.

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 will proceed.

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 suits.

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 Vicini)

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