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Contraception mandate takes effect, fight to reverse it continues

Published: Wednesday, Aug. 1 2012 9:54 p.m. MDT

In oral arguments the previous week, Bowman argued that the “government does require grandfathered plans for these tens of millions of women to do a variety of things. They can't exclude people because of preexisting conditions. They have to include dependents up to age 26. They can't impose lifetime spending limits. These are all interests that Congress decided were important enough to impose on grandfathered plans.”

Among those grandfathered is the Deseret Mutual insurance, still known commonly as DMBA, provided by The Church of Jesus Christ of Latter-day Saints to its employees, including its colleges and universities.

“Currently our employee plans are grandfathered, so these new requirements don’t apply to us,” said David Call, vice president at DMBA. “Since we are not changing our employee plans, the existing plan is grandfathered in.”

Call said DMBA is not planning on making any changes that will require them to enact the new requirements. “With the uncertainty of the future, we will watch to see what happens,” he said.

In the Hercules case, Bowman argued that by grandfathering and exempting millions of people from the mandate, “the administration admitted that it is not a compelling state interest.”

Judge John L. Kane seemed to concur. In his preliminary injunction, Kane noted the 190 million Americans grandfathered or exempt from the mandate and indicated those exemptions cast doubt on the compelling state interest justification for the mandate.

This was not the only note of skepticism Kane offered toward the government case. As Carrie Severino noted at National Review, Kane doubted whether the government had tried less burdensome approaches: “For example, if free contraceptive coverage were so important, the government could simply expand the programs it currently runs to provide contraceptives to all women instead of only low-income women.”

Severino also noted Kane’s skepticism about the government’s general posture toward religion, observing that the judge “held that the asserted government interest in the health of women and children is ‘countered, and indeed outweighed, by the public interest in the free exercise of religion.’”

Kane characterized the government's position as holding that “a for-profit, secular employer" such as Hercules "cannot engage in an exercise of religion.” This question seemed to intrigue the judge, and according to John G. Malcolm and Dominique Ludvigson at the Heritage Foundation, much hinges on it.

“Under that logic,” Malcom and Ludvigson wrote, “if the government decided to require any business that served or prepared food to offer pork, kosher or halal butchers would be forced to forgo their most deeply held religious convictions in order to stay in business. Accepting the government’s position would effectively push religion out of every sphere of public life and restrict the free exercise rights of adherents to live out their faiths in their day-to-day lives.”

Eric Schulzke writes on national politics for the Deseret News. He can be contacted at eschulzke@desnews.com.

Joseph Walker contributed to this story.

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