Blockbuster cases hit close to home

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Baltimore Archbishop William E. Lori hailed as “a victory for religious liberty” the U.S. Supreme Court’s ruling Monday that some corporations can hold religious objections that allow them to opt out of the federal health insurance requirement that they cover contraceptives for women.

Lori said the Hobby Lobby decision bodes well for a separate legal challenge he has brought, as head of a Catholic employers’ cooperative, against the federal Affordable Care Act’s mandate.

The Supreme Court’s decision “gives us momentum” and shows “it’s worth undergoing the struggle to defend these religious liberty rights,” said Lori, who is president of the Oklahoma City-based Catholic Benefits Association.

Lori was already enjoying some momentum: U.S. District Judge David L. Russell issued a preliminary injunction in federal court in Oklahoma City on June 4, blocking federal enforcement of the law against the cooperative’s Catholic-owned nonprofit and for-profit businesses pending resolution of the litigation.

Like the Supreme Court on Monday, Russell based his ruling not on the First Amendment but on a federal statute, the Religious Freedom Restoration Act.

However, the Supreme Court’s decision is narrow and limited to closely held businesses. It leaves unanswered the extent to which nonprofits — such as charities, hospitals and schools — have a similar right to deny contraception coverage. About 50 such cases are pending in the federal courts.

“It’s a little too soon to know if there are any indications at all in this decision that is predictive of those suits,” Lori said. “We’re just in that prayerful and hopeful mode, I guess you can say.”

Closely held companies

The 5-4 Hobby Lobby decision marks the first time the high court has ruled that profit-seeking businesses can hold religious views under federal law. And it means the Obama administration must search for a different way to provide free contraception to women who are covered under objecting companies’ health insurance plans.

Contraception is among a range of preventive services that must be provided at no extra charge under the health care law that President Barack Obama signed in 2010.

The Catholic Benefits Association’s lawsuit was filed in March, the same month the Supreme Court heard Hobby Lobby Stores Inc.’s faith-based challenge to the Affordable Care Act’s contraception requirement.

Russell, in issuing the preliminary injunction, did not reach the constitutional issue of whether the ACA violates the First Amendment.

Russell said he did not have to address the constitutional issue as his injunction was based on the RFRA statute, because employers can face hefty fines for refusing to provide contraception coverage.

“In other words, Plaintiffs [CBA and its members] can choose from either violating their sincerely held religious beliefs in a variety of ways, or facing severe monetary penalties that would quite likely ruin them,” wrote Russell, an appointee of President Ronald Reagan. “Without question, then, the challenged provisions of the ACA present these Plaintiffs with a ‘Hobson’s choice,’ meaning that Plaintiffs have established a substantial burden under RFRA.”

CBA’s attorney, L. Martin Nussbaum, did not return telephone and email messages Monday seeking comment on the Supreme Court’s decision. Nussbaum is with Lewis Roca Rothgerber LLP in Colorado Springs, Colorado.

The Obama administration has fought CBA, Hobby Lobby and other opponents of the contraceptive mandate, saying a victory for them would prevent female employees from making decisions about birth control based on what’s best for their health, not whether they can afford it.

In the dozens of suits remaining, some companies object to paying for any form of birth control while others, like Hobby Lobby, seek only to exclude drugs or devices that the government says may work after an egg has been fertilized.

In the Supreme Court’s Hobby Lobby decision, the contraceptives at issue were the emergency contraceptives Plan B and ella, and two IUDs.

Justice Samuel Alito wrote the majority opinion, which held the mandate to be a violation of the federal Religious Freedom Restoration Act when applied to closely held corporations whose owners have religious objections to contraception.

The court’s four liberal justices dissented.

In a dissent she read aloud from the bench, Justice Ruth Bader Ginsburg called the decision “potentially sweeping” because it minimizes the government’s interest in uniform compliance with laws affecting the workplace. “And it discounts the disadvantages religion-based opt outs impose on others, in particular, employees who do not share their employer’s religious beliefs,” Ginsburg said.

The majority stressed that the ruling applies only to corporations that are under the control of just a few people in which there is no essential difference between the business and its owners, like the Oklahoma-based Hobby Lobby chain of arts-and-craft stores that challenged the provision.

Alito also said the decision is limited to contraceptives under the health care law.

“Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs,” Alito said.

He suggested two ways the administration could ensure women get the contraception they want. It could simply pay for pregnancy prevention, he said.

Or it could provide the same kind of accommodation it has made available to religious-oriented, not-for-profit corporations. Those groups can tell the government that providing the coverage violates their religious beliefs. At that point, the groups’ insurers or a third-party administrator takes on the responsibility of paying for the birth control.

Justice Anthony Kennedy, who was in the majority, also wrote separately to emphasize the administration can solve its problem easily. “The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it,” Kennedy said. He said that arrangement “does not impinge on the plaintiffs’ religious beliefs.”

Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the requirement to offer birth control.

A survey by the Kaiser Family Foundation found 85 percent of large American employers already had offered contraceptive coverage before the health care law required it.

It is unclear how many women potentially are affected by the high court ruling. Hobby Lobby is by far the largest employer of any company that has gone to court to fight the birth control provision.

Oklahoma City-based Hobby Lobby has more than 15,000 full-time employees in more than 600 crafts stores in 41 states. The Greens, who own the business, are evangelical Christians who also own Mardel, a Christian bookstore chain.

The other company is Conestoga Wood Specialties Corp. of East Earl, Pa., owned by a Mennonite family and employing 950 people in making wood cabinets.

The Associated Press contributed to this article.