Private businesses are arguing that their religious freedoms are being violated. Courts to hear birth control lawsuits

Obamacare’s birth control mandate will go before four different appeals courts over the next three weeks as private businesses that object to the policy on religious liberty grounds bring a barrage of lawsuits that opponents hope to get before the U.S. Supreme Court as soon as this fall.

On Wednesday, two for-profit companies will ask the 7th Circuit Court of Appeals to strike the requirement that they provide employees with insurance coverage that includes birth control and other drugs that they say can cause abortion. Three other companies will present oral arguments in different appeals courts by early June.


The companies — a craft store, an automotive parts manufacturer, a contractor, a woodworker and a light manufacturer — say in their separate lawsuits that their religious freedoms are being violated by the Obama administration’s requirement, which stems from the health law, that they cover contraception in their employee insurance plans.

The business owners say that they have strongly held religious beliefs against the use of contraceptives and that the fines they would incur for not providing them could amount to millions of dollars. They argue that they should be exempt on moral grounds like certain church-affiliated groups even if they are for-profit businesses rather than nonprofit religious groups.

“What the mandate is requiring our clients to do is to arrange for, pay for and provide coverage that runs contrary to their religious beliefs,” said Edward White, senior counsel at the American Center for Law and Justice, which is representing Korte & Luitjohan Contractors.

The Obama administration argues that women’s access to contraceptives is in the public interest and should not be hindered by employers’ religious beliefs.

The American Civil Liberties Union, which has weighed in on several of the lawsuits, says the employers don’t have a direct relationship with using the products they find objectionable.

“The company is buying an insurance plan that covers a whole host of services and then used by someone else to engage in the conduct that is objectionable [to the employer],” said Louise Melling, the ACLU’s deputy legal director. “It’s too attenuated.”

More than 60 lawsuits have been filed on the issue — about half by for-profit businesses and half by nonprofit institutions. Legal experts on both sides agree the for-profit cases hitting the appeals court level now are very likely to go before the Supreme Court. That’s because the nonprofit groups are covered by a safe harbor agreement issued by the Obama administration until final rules on the issue are released this summer.

“I think that the for-profit cases are the ones that are more critical in terms of moving forward and reaching the court,” said Gretchen Borchelt, senior counsel at the National Women’s Law Center, which is supporting the government’s position.

The four circuit courts that are hearing the suits in the next three weeks could rule sometime this summer. The losing party in most cases is expected to petition the Supreme Court within the required 90 days. If the circuit courts issue opposite opinions, the justices could be more likely to consider taking at least one of the cases.

The largest company to file suit, craft store Hobby Lobby, will argue its case before the entire 10th Circuit Court of Appeals on Thursday. The company’s owners object to providing certain types of contraception in its coverage.

Most for-profit companies became subject to the requirement on Aug. 1 of last year. But Hobby Lobby has been able to successfully avoid paying fines by pushing its insurance plan year start date back to July 1 instead of Jan. 1. Some of the other companies have been able to obtain injunctions to block enforcement of the rule.

Kyle Duncan, general counsel for The Becket Fund for Religious Liberty, which is representing Hobby Lobby, said the company’s owners will argue that they have the same right to religious exercise as individuals who run nonprofit or religious businesses. The arguments will center on a key question, he said: “Does the mere fact that they’re a profit-making business … negate their right to freedom of exercise of religion?”

Kevin Walsh, a law professor at the University of Richmond who was the counsel on an amicus brief filed by Republican lawmakers in the Hobby Lobby case, said the outcomes for these for-profit cases could have big implications for the Obama administration. He suggested that the decisions could impact how much they concede in a final compromise for nonprofit groups that oppose the rule.

“If [the Department of Justice] loses these cases, that’s a big, big setback for them,” Walsh said. “Government losses would be more sweeping than government wins.”