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Religious organizations win, lose in contraception mandate cases

Published: Thursday, Sept. 3 2015 12:53 a.m. MDT

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Two church-affiliated schools scored a victory and a Christian-owned chain store was handed a costly defeat this week in their separate ongoing legal battle against the Obama administration's contraception mandate.

On Thursday, the 10th Circuit Court of Appeals in Denver upheld a lower court ruling that denied a request by arts and crafts chain store Hobby Lobby to temporarily block enforcement of the mandate. The denial could cost the company up to $1.3 million in daily fines if it doesn't provide a controversial contraceptive drug through its employees' insurance plan.

That ruling comes two days after the Circuit Court of Appeals in Washington, D.C., reinstated the lawsuits filed by Belmont Abbey College in North Carolina and Wheaton College in Illinois and ordered the government to make good on its promise to draft new rules that could resolve the legal standoff between church-owned schools and hospitals and the Obama administration.

The ruling "turned a page here by adding a new level of supervision to hold the government responsible for the promise it made," said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which represents the two church-affiliated schools.

“This is a win not just for Belmont Abbey and Wheaton, but for all religious nonprofits challenging the mandate,” Duncan said. “The government has now been forced to promise that it will never enforce the current mandate against religious employers like Wheaton and Belmont Abbey, and a federal appellate court will hold the government to its word.”

The two schools are among 42 organizations and businesses that have sued the government claiming that the ACA's mandate — which requires that employers cover contraception in workers’ insurance plans — violates their federal right to religious liberty because they oppose contraception on religious grounds.

And while the results are mixed on the legal front, in the court of public opinion recent polls show Americans are siding with the government over the mandate question, apparently seeing it as a health care issue instead of religious liberty.

"The American public appears unaware or unconcerned that some religious organizations and family businesses indicate fear of losing the freedom to practice their faith under the new health care regulations," said Ed Stetzer, president of Lifeway Research, which does polling for the Southern Baptist Convention.

Profits and nonprofits

The government argued that the cases brought by the church-affiliated schools and hospitals should be dismissed because the administration had created a "safe harbor" from enforcement until August 2013. By then, government officials would come up with new rules that would resolve the religious objections of nonprofit employers like Catholic Belmont and evangelical Wheaton.

Most of the lawsuits brought by nonprofits have been dismissed based on the government's promise that the problem will be resolved out of court.

On Friday, during a hearing appealing a lower court's dismissal of the suits brought by Belmont and Wheaton, government attorneys told a panel of judges that the administration would "never enforce" the current mandate and that a new rule would be drafted by March 2013.

"We take the government at its word and will hold it to it," the appellate court ruled. The justices held the lawsuits in abeyance pending the new rule. They also ordered the government to file status reports every 60 days on the progress of the new rule.

While the ruling was good news for nonprofits, it gives no relief to the 10 private businesses that have filed similar claims that the mandate violates their religious freedom in the workplace. Some of those firms, like the national arts and crafts chain Hobby Lobby, face millions of dollars in daily fines for not complying with the mandate, which takes effect Jan 1.

Federal judges have ruled in five of those cases, granting requests to block the mandate for three companies pending the outcome of the cases.

Hobby Lobby's lawsuit claimed the mandate violates the religious beliefs of its Christian founder and CEO David Green and his family by requiring insurance coverage for the so-called "morning-after" and "week-after" birth-control pills.

A federal judge denied the Oklahoma-based company's request for an injunction, finding that the religious burden was indirect, rejecting previous appellate court rulings that found there is no distinction between direct and indirect burdens that government places on businesses.

The 10th Circuit Court of Appeals denied Hobby Lobby's emergency request for an injunction.

“The Green family is disappointed with this ruling,” Duncan said. “They simply asked for a temporary halt to the mandate while their appeal goes forward, and now they must seek relief from the United States Supreme Court. The Greens will continue to make their case on appeal that this unconstitutional mandate infringes their right to earn a living while remaining true to their faith.”

Shifting opinions

Public opinion on the issue has gradually shifted in support of the mandate in the past year.

In November, a survey by Lifeway Research, an affiliate of the Southern Baptist Convention, found a majority of adults believe all businesses and organizations, even those with conflicting religious principles, should be required to provide coverage of contraception and birth control for their employees.

An earlier survey by the Public Religion Research Institute had similar results. It also found few people (6 percent) considered the contraception mandate a threat to religious liberty.

A Pew Research Center survey in February showed opinions closely divided over the question of institutions being granted a religious exemption from the mandate, with 48 percent supporting and 44 percent against such an exemption.

But a CBS/New York Times poll in March found 57 percent said religious-affiliated employers should be able to opt out of the mandate.

While the polls used varying terminology that could influence a response for or against the mandate, Dan Cox, research director at Public Religion Research Institute, said such nuances wouldn't affect results dramatically.

"As pollsters we always try to ensure the questions accurately reflect the parameters of the debate or the substance of the policy while remaining as concise as possible," he said. "It can be a difficult balance."

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