A federal court has temporarily blocked the Obama Administration’s contraceptive mandate for one Colorado air conditioning company, in the first of what promises to be several legal fights over the regulation, ultimately winding up at the Supreme Court.
The ruling comes in a case brought by Hercules Industries, which argued that they should not have to comply with the mandate of providing free contraceptive coverage for their employees because it violates the religious beliefs of the owners.
Judge John Kane, a Jimmy Carter appointee, said that only Hercules Industries would be allowed to decline compliance with the mandate, under this initial ruling. However, other companies will almost certainly use the same arguments and this precedent to maintain that they need to get let out of the mandate as well. This is the first ruling against the regulation; several businesses and religious institutions have sued along similar lines.
Because Hercules Industries is a secular business and not a religiously-affiliated institution, under current law they would have to provide contraceptive coverage in their health plans without a co-pay. Religious institutions like churches are exempt from the regulation, and entities like Catholic hospitals and universities will provide the coverage to their employees under a Rube Goldberg-type scheme, where the insurance company contracts directly with the individual policyholder. This regulation was scheduled to go into effect for all non-religious employers August 1.
Judge Kane ruled that the mandate could represent a “substantial burden” on the free exercise of religion guaranteed by the First Amendment, and that he would temporarily enjoin enforcement for Hercules, before he reached a final verdict. However, no other business would get to delay. So other companies would have to seek preliminary injunctions of their own to get out of the mandate before the enforcement date.
Sarah Kliff adds that Judge Kane may eventually rule against the mandate:
Hercules is challenging the birth control mandate as a First Amendment violation, inhibiting its ability to practice religion freely. The company also argues that the mandate violates the Religious Freedom Restoration Act, or RFRA, a law from the 1990s that is meant to afford greater legal protection to religious institutions from federal requirements that “substantially burden” their ability to practice religion [...]
One issue (Judge Kane) writes about in detail has to do with the Religious Freedom Restoration Act. If a religious organization can prove that a “substantial burden does exist” on their right to practice their religion, RFRA does give the government a way to fight back: It can argue that, while the law is burdensome, it achieves a compelling government interest in the least restrictive way possible.
Kane, in this document, doesn’t necessarily seem to buy the government’s argument that it has taken the least restrictive approach. Couldn’t it, for example, just provide free contraceptives itself, taking employers out of the matter altogether?
“Defendants have failed to adduce facts establishing that government provision of contraceptives would necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care to women,” Kane writes. “Once again, the existence of analogous programs heavily outweighs such an argument.”
The American Civil Liberties Union described the ruling as “discrimination,” saying that it prevents employees from making their own health care decisions, forced instead to abide by the religious beliefs of their employers.
The rulings, and the implications for religious and non-religious businesses, have only just begun. And it’s more than likely that this will all end up before the Supreme Court.