U.S. Defends Employer-Paid Birth Control to Appeals Court

A bar to mandatory employer-paid birth control during a court challenge should be rejected, the Obama administration argued to an appeals court.

Lawyers for U.S. Health Secretary Kathleen Sebelius today urged the U.S. Court of Appeals in Washington to reject a request by the city’s Roman Catholic archbishop to delay a lower court’s decision in favor of the coverage, mandated by the Affordable Care Act, while the ruling is under appeal.

The D.C. Catholics aren’t required by the law “to contract, arrange, pay or refer for contraceptive coverage” and an injunction pending appeal isn’t necessary, the government said in court papers.

“They need only self-certify that they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services and provide a copy of their self-certification to their health insurance issuer or third-party administrator,” the government said.

Lawyers for the archdiocese contend in their briefs that enforcement of the health plan “constitutes impermissible facilitation of objectionable services in violation of the Catholic doctrines of material cooperation with immoral conduct and ‘scandal.’”

The U.S. Supreme Court on Nov. 26 agreed to hear two cases brought by business owners who object on religious grounds to the birth-control mandate.

Lawsuit Plaintiffs

The lawsuits were filed by the craft store chain Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. The cases will provide the court’s first look at President Barack Obama’s health-care bill since it upheld the core of the Patient Protection and Affordable Care Act in 2012.

Appeals courts in Chicago, Denver and Washington have ruled that the mandate may violate religious freedom. Appellate panels in Philadelphia and Cincinnati had sided with the government.

A federal judge in Houston today ruled the mandate violates the Religious Freedom Restoration Act by requiring nonprofit religious universities to sign forms allowing their insurers to pay for employees’ contraceptive services opposed by the schools.

Sign Forms

U.S. District Judge Lee H. Rosenthal banned the government from enforcing either the mandate or a recent accommodation that requires nonprofit religious employers to pay “onerous fines” if they don’t sign forms certifying their objections.

“The purpose and effect of the form is to accomplish what the organization finds religiously forbidden and protests,” Rosenthal said in a 46-page opinion today. “On Jan. 1, 2014, the plaintiffs will be compelled or pressured to do something that they did not have to do on Dec. 31, 2013.”

“The effort to accommodate the religious organizations by reducing their involvement in providing their employees with such access to emergency contraception” still required the universities to take steps that “offend their faith,” Rosenthal said in a case brought by Houston Baptist University, East Texas Baptist University and Westminster Theological Seminary.

The Washington case is Roman Catholic Archbishop of Washington v. Sebelius, 13-5371, U.S. Court of Appeals for the District of Columbia (Washington). The Houston case is East Texas Baptist University v. Kathleen Sebelius, 4:12-cv-03009, U.S. District Court, Southern District of Texas (Houston).

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