Groups opposed to contraception mandate will push forward with lawsuits

The Supreme Court's ruling Thursday to uphold the constitutionality of President Obama's health care law did nothing to quell a flood of lawsuits in the works by groups opposed to the so-called contraception mandate.

The Becket Fund for Religious Liberty was quick to announce Thursday that it will move forward with litigation challenging a requirement from the federal health care law that employers provide access to contraceptive care.

"The court's opinion today did not decide the issues in our cases," Hannah Smith, senior counsel for the group, said in a statement. "We are challenging the Health and Human Services (HHS) mandate on religious liberty grounds which are not part of today’s decision.

"The Becket Fund's religious liberty lawsuits against the unconstitutional HHS mandate will continue," she said. "Never in history has there been a mandate forcing individuals to violate their deeply held religious beliefs or pay a severe fine, a fine which could force many homeless shelters, charities, and religious institutions to shut their doors."

In a conference call with reporters, Smith later pointed to the opinions from both Chief Justice John Roberts and Justice Ruth Bader Ginsburg as fuel for pending legal challenges against such a provision.  The ruling said the other mandate -- the individual mandate requiring people to buy health insurance -- was legal under Congress' authority to tax.

"Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution," Smith quoted Roberts as saying. She also cited Ginsburg, who said, "A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

"That’s exactly what the HHS mandate does," said Smith, referring to the contraception mandate.

Smith claims both Roberts and Ginsburg’s opinions signal that the high court may be willing to strike down the contraception mandate as a violation of religious liberty. She went on to say that the court’s 5-4 ruling Thursday dealt solely with the question of whether Congress had the power to pass such a statute.

Smith's group has led the charge against the contraception mandate, arguing that the provision violates what's known as the Religious Freedom Restoration Act -- a federal law that bars rules that would impose a substantial burden on religious expression.

The Obama administration is currently trying to get the case dismissed, to allow time for the federal government to come up with its compromise measure.

The administration originally pitched the free birth control plan as another way to expand access to health care and coverage -- the overarching goal of the federal health care law.

"Due in large part to cost, Americans used preventive services at about half the recommended rate," the administration said in a court brief filed earlier this year. "The (health care law) -- which includes the preventive services coverage provision at issue here -- seeks to cure this problem by making recommended preventive care affordable and accessible for many more Americans."

President Obama claimed this year that while many had "genuine concerns" about the proposal, others were using it as a "political football."

The contraception rule does include an exemption for religious organizations -- but that exemption does not cover many religious-affiliated organizations like schools and charities.

Complaints about the narrowly tailored exemption prompted a stand-off between the Obama administration and religious groups earlier this year. As a compromise, Obama and Health and Human Services Secretary Kathleen Sebelius decided insurers -- and not the religious-affiliated organizations themselves -- would be required to offer contraceptive coverage directly.

The Becket Fund is currently engaged in separate federal lawsuits on behalf of four religious institutions: Belmont Abbey College, Colorado Christian University, Eternal Word Television Network and Ave Maria University. There are now 23 lawsuits in 14 states and the District of Columbia involving more than 50 plaintiffs, according to the group -- the challenges include a second wave of lawsuits filed in May by major Catholic universities and other groups.

“It seems to be the administration has won one legal challenge and there are 23 others waiting in the wings,” said Mark Rienzi, a senior counsel with the group and a law professor at the Catholic University of America.