Conflicting rulings on contraception mandate will likely send issue to Supreme Court

Published: Tuesday, Jan. 29 2013 9:20 a.m. MST

A host of conflicting rulings over Obamacare's contraception mandate likely means the contentious issue, which has pitted religious organizations and devout business leaders against the government, is headed to the Supreme Court, legal scholars say.

Several reports in the past 10 days quote law professors around the country saying the suits involving private businesses, which face millions of dollars in fines for not complying with the mandate, are creating a logjam of differing legal opinions.

‘‘The circuits have split. You’re getting different, conflicting interpretations of law, so the line of cases will have to go to the Supreme Court," said Carl Esbeck, a professor at the University of Missouri Law School who specializes in religious liberty issues, told the Associated Press.

So far, in nine of the 14 cases filed by for-profit companies, federal courts have temporarily blocked enforcement of the mandate, according to the Becket Fund for Religious Liberty.

The Supreme Court has weighed in on the highest profile business case, which involves the Hobby Lobby craft store chain, siding with the 10th Circuit Court of Appeals in rejecting a request to block the mandate. But Justice Sonja Sotomayor didn't rule on the merits of Hobby Lobby's contention that the mandate violates federal law protecting the right to observe one's faith.

Under the Affordable Care Act, employers' health insurance plans are required to cover contraception, including sterilization, for free. The rule became a flashpoint when Health and Human Services began deliberating it and has generated 45 lawsuits against the government.

Most of the lawsuits have been filed by church-affiliated schools, hospitals or charities that want that same exemption granted to churches. Their lawsuits have been put on hold while the Obama administration mulls over an accommodation.

But for-profit businesses are getting no such relief. Those business owners who are suing the government claim the mandate forces them to violate tenets of their faith that prohibit contraception and abortion.

Legal scholars say the strongest claims against the government are under the federal Religious Freedom Restoration Act, a 1993 law that bars government from interfering with religious practice unless there is a compelling government interest in doing so.

Douglas Laycock, a law professor at the University of Virginia and church-state expert, explained to the New York Times that because the health care law has so many exceptions, including for very small companies, the government might find it hard to convince the courts that contraception coverage is, in fact, a compelling interest.

Timothy Jost, a health care scholar at the Washington and Lee University School of Law, said in a Washington Times story that the analysis gets tricky when business owners equate themselves and their personal principles with their rights as businesses.

“I don’t see this as an easy case at all,” Jost said. “And that’s evidenced by the fact that the courts have been all over the place.”

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