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Judge bars birth control mandate

A federal judge in Colorado, acting on one of two dozen cases across the nation challenging the new health care law’s promise of free birth-control for women workers, on Friday temporarily barred the enforcement of that mandate against a Catholic family’s private business firm.  The eighteen-page ruling by Senior District Judge John L. Kane, Jr., appears to be the first in those lawsuits.  The order will remain in effect while the judge studies further whether to make the ban permanent.  It applies only to one company, but it marked a significant initial victory for the challengers.

Under the new Affordable Care Act, Congress created a number of new requirements to assure minimum levels of health care, and the birth-control mandate is one of them — and is one of the most controversial.  It requires group health plans to provide free contraceptive care and screening.  But it includes many exceptions, and that was one of the reasons Judge Kane cited in rejecting the Obama Administration argument that blocking enforcement even temporarily would seriously interrupt this kind of health care.

The Becket Fund for Religious Liberty, a private legal advocacy group, and other advocacy organizations have sued in twenty-four lawsuits across the country in an attempt to strike down the mandate, arguing that it intrudes on religious freedom.  One of the cases — filed by the Alliance Defense Fund — involves Hercules Industries, Inc., a Denver-based company that makes and sells heating, ventilation, and air conditioning products.  It is owned by three brothers and a sister in the Newland family.  It is a profit-making company that the family has argued is being run in a way to reflect their religious beliefs as members of the Roman Catholic faith.  A tenet of their faith is opposition to birth control, and Hercules Industries as a result has refused to provide its women workers under a self-insured health plan with birth-control drugs, abortion services, or sterilization procedures. Judge Kane found that the company in the past eighteen months has taken a variety of steps to organize itself along religious lines.

Comparing the burden on the family’s religious beliefs and on the federal government’s new program, Judge Kane said the harm to the government “pales in comparison to the possible infringement” upon the Newland family’s rights under the Constitution and under federal laws.  Although he mentioned their constitutional rights, his temporary order was based not on the family’s constitutional claims, but rather on their argument that the birth-control mandate interferes with their rights under the federal Religious Freedom Restoration Act.

While noting that the government had defended the mandate by arguing that it would disrupt Congress’s goal of improving the health of women and of equalizing preventive care for women and men, the judge said that goal is “undermined by the creation of exemptions” under regulations issued by the federal Health & Human Services Department.  The mandate, the judge noted, does not apply to many health care plans that were in existence on March 23, 2010 (the day President Obama signed the new health care law), and the exempted plans provide coverage for an estimated 191 million Americans.   The mandate also has an exemption for purely religious employers, but has no similar exemption for religious-oriented employers not actually involved in religious affairs.

One of the significant legal issues that Judge Kane identified — and one that he said will require further study by him — is whether a corporation can itself “exercise religion” in a way that is protected by federal law.  Should a corporation owned and operated by a small group of religious individuals be treated differently from a large, publicly owned company whose stockholders have differing religious beliefs? the judge asked.  He also said he was interested in whether a corporation’s usual immunity to legal challenge can be put aside in the face of federal laws dictating corporate conduct.  “These questions merit more deliberate investigation,” the judge summed up.

Balancing both sides’ interests and claimed injuries, Judge Kane said that tips “strongly in favor” of the Newland family and their company.  His order bars all federal officials from enforcing against the family and the company any requirement that they provide “FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” He said his preliminary injunction will expire “three months from entry of an order” on the constitutionality of the mandate as applied to the family and their company.  He said he was speeding up the case, and ordered both sides to jointly prepare by August 27 a plan for managing the case as it unfolds.   He stressed that the order does not bar enforcement of the mandate against anyone else.

Recommended Citation: Lyle Denniston, Judge bars birth control mandate, SCOTUSblog (Jul. 27, 2012, 6:20 PM),