By Terry Baynes
Feb 8 (Reuters) - When the Obama administration last week
announced which employers would be exempt from the healthcare
act's birth control mandate, it intended to mollify the
faith-based institutions that objected to providing coverage to
employees for contraception. But the exemptions are unlikely to
eliminate the more than 40 lawsuits filed by opponents who say
the law violates their religious liberty, critics from the
religious community said this week.
Under the clarified rule, the government chose to use the
Internal Revenue Code's definition of "religious employer,"
which means churches and other houses of worship are exempt from
providing contraceptive coverage to their employees.
The government also introduced an accommodation for
religious non-profits so that eligible organizations would not
have to contract, arrange or pay for contraception coverage.
Instead, their insurance companies would have to allow plan
participants to opt for separate individual health insurance
policies that include free birth control coverage, with the
insurers picking up the tab. For religious non-profits that are
self-insured, the third party that administers claims would have
to coordinate free birth control coverage.
But far from pacifying religious non-profits and for-profit
businesses with religious owners, the accommodation and
exemption language, unveiled on Feb. 1, has fueled the various
institutions' determination to pursue relief in the courts.
The critics say the new exemptions continue to infringe on
their religious liberty because they are being forced to
facilitate access to birth control.
"We will continue to stand united with brother bishops,
religious institutions and individual citizens who seek redress
in the courts for as long as this is necessary," Cardinal
Timothy Dolan of New York, president of the U.S. Conference of
Catholic Bishops, said in a statement on Thursday.
The contraception mandate, which requires employers to
provide free birth control as a benefit in their healthcare
plans under the Affordable Care Act of 2010, ignited a firestorm
of protest as soon as it was issued by the Obama administration
in August 2011.
The government backed down soon after, carving out an
exception for churches and other houses of worship, provided
they meet certain conditions, including that they employ and
serve people with the same religious beliefs.
Opponents continued to file new challenges to the law, but
courts either dismissed them as premature or put them on hold
while the administration was finalizing the rule.
Lawyers said the Feb. 1 proposal is unlikely to reduce the
number of lawsuits since most of the cases brought by churches
or houses of worship included multiple plaintiffs, such as
church-affiliated hospitals and schools.
One or more plaintiff in each lawsuit may now be exempt
under the clarified rule, said Larry Hansen of Locke Lorde, who
represents health plans sponsored by religious groups affected
by the regulations. But other plaintiffs in the same lawsuit may
still be required to facilitate free contraceptive coverage
through their insurance plans, and those plaintiffs are likely
to continue with their effort to overturn the law.
A lawyer for Wheaton College, a Christian school near
Chicago, said it would likely forge ahead with its lawsuit,
which is pending in the U.S. Court of Appeals for the District
of Columbia Circuit. He said the new rule provided no guidance
for self-insured non-profits like Wheaton on how to proceed.
"This accommodation doesn't really resolve the moral problem
for religious organizations," said Kyle Duncan, the lawyer for
Wheaton, as well as the five other religious nonprofits in
similar suits. The proposed new rule leaves clients tangled up
with practices that they don't support, he said.
The Roman Catholic Archdiocese of Washington, which sued
alongside an affiliated high school, charity and college, said
on Thursday that it would follow the recommendation of the U.S.
Conference of Catholic Bishops, which vowed to support the
The Justice Department did not immediately respond to a
request for comment.
Numerous for-profit businesses whose religious owners have
sued to challenge the contraceptive mandate are expected to
continue their lawsuits because the new rule does not give them
protection from the birth control coverage mandate.
The majority of those businesses have won temporary relief
from the law in district court, said Duncan, who represents the
family-owned arts and crafts chain Hobby Lobby.
"From our point of view, the new rule will likely raise more
questions than it answers and not satisfy many," Duncan said.
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