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Health

Court sides with employers in contraception case

The U.S. Supreme Court delivered a setback to the Obama administration Monday by ruling that the owners of private companies may refuse on religious grounds to offer employees insurance coverage for birth control.

In a 5-4 ruling, the court's conservatives found that the requirement for contraceptive coverage tied to Obama's signature health care law ran afoul of a 1993 law expanding religious freedom.

The decision, written by Justice Samuel A. Alito Jr., could have implications not only for secular companies but also religious organizations that are seeking a more complete exemption from the same requirement, including the Little Sisters of the Poor, a Catonsville-based Catholic charity.

Alito wrote that the birth control requirement was a substantial burden on the religious beliefs of the business owners who challenged it. The government can impose such a burden only when it relies on the "least restrictive means" to serve a compelling public interest.

"And the mandate plainly fails that test," Alito wrote.

The business owners, he wrote, "have a sincere religious belief that life begins at conception. ... By requiring [them] to arrange for such coverage, the … mandate demands that they engage in conduct that seriously violates their religious beliefs."

Two family-owned companies challenged the requirement: Oklahoma City-based Hobby Lobby, a chain of arts and crafts stores with 13,000 employees, and Conestoga Wood Specialties, a Pennsylvania-based cabinetmaker with about 950 workers. The companies specifically objected to offering emergency contraceptives such as Plan B and Ella.

At the Hobby Lobby store in Columbia on Monday, store officials declined to comment, but in the parking lot, shopper Barbara Jenkins, 48, of Damascus, said she didn't agree with the company's position or with the Supreme Court decision.

"As a woman, I think you should have a right to get contraception and any other female-specific care. I don't think [the court ruling is] right," Jerkins said.

She said Hobby Lobby officials "have to realize that they probably have people with different religious beliefs working for them," so to hold them all to one religion's beliefs "is not fair."

In her dissent, Justice Ruth Bader Ginsburg described the majority opinion as one of "startling breadth," arguing that it would allow a broad swath of companies to "opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."

The decision was praised by conservatives on Capitol Hill as a victory for religious freedom in what they framed as a struggle with a White House that has repeatedly overstepped its authority.

"While in Ukraine during WWII, my mother saw churches burned by government agents because there was no freedom of religion," said Rep. Andy Harris, Maryland's only Republican in Congress. "The Supreme Court's decision," he said, "upholds that fundamental freedom."

Democrats and women's rights groups countered that the ruling leaves it up to company owners to decide what types of medical costs should be covered by insurance in cases where the religious values of employers and employees may differ.

"For women, birth control isn't controversial," said Cecile Richards, president of Planned Parenthood. "The only controversy is that we're still fighting to have this basic health care covered by insurance."

In an email to supporters, Gov. Martin O'Malley argued that "no woman should have her health decisions made by her boss."

A White House spokesman and several Democrats on Capitol Hill suggested Congress could try to mitigate the decision's impact with legislation, but that outcome seemed unlikely given the partisan rancor the issues inspire.

Monday's decision is likely to influence pending court cases on a related matter — how the contraceptive requirement should apply to religious nonprofits. Among those cases is a lawsuit brought the Little Sisters of the Poor that is pending before the 10th U.S. Circuit Court of Appeals.

As it wrote the rules implementing the Affordable Care Act, the U.S. Department of Health and Human Services limited the scope of the requirement for some religiously affiliated organizations, such as hospitals and universities. Those groups are not required to pay for contraceptive coverage themselves if they sign a form stating their objection.

Employees of those groups may continue to receive coverage for birth control, but it is paid for by the insurance companies — and in some cases the government — not the employer.

Catholic groups, including the Little Sisters, have argued that the act of signing the form — and passing the responsibility off to an insurance company — makes them complicit in violating their religious doctrine. The group's case could come before the Supreme Court as soon as next year.

In his decision Monday, Alito specifically pointed to the arrangement groups like Little Sisters operate under as an attempt by the administration to "respect the religious liberty of religious nonprofits corporations while ensuring that the employees of these entities have precisely the same access" to contraception.

A Little Sisters spokeswoman referred questions to the group's attorneys.

Daniel Blomberg, legal counsel for the Becket Fund for Religious Liberty — which represents both Hobby Lobby and the Little Sisters — said the court was only using the situation with the nonprofits as an example of an arrangement that was less restrictive and was not endorsing the idea.

Alito specifically wrote that the court was not rendering an opinion on the approach.

"The question is will the government continue coming after Little Sisters of the Poor even after this decision," Blomberg said.

In a statement, the U.S. Conference of Catholic Bishops said the decision "clearly did not decide whether the so-called 'accommodation' violates" the law.

Justice Anthony Kennedy suggested that the accommodation made for religious groups could be applied to private companies as well, writing in a separate opinion that it "furthers the government's interest but does not impinge on the plaintiffs' religious beliefs." That position makes Kennedy, often a swing vote on the court, a key justice to watch if the Little Sisters or another similar case is heard.

For now, even the more limited requirement for religious groups has been put on hold. In January, the Supreme Court issued an order temporarily shielding the Little Sisters from complying until the legal questions are settled.

Among the broader questions raised by the decision is whether it will prompt other companies to challenge other laws on religious grounds. Alito repeatedly wrote that the decision would apply only to closely held corporations whose owners had demonstrated a sincere commitment to faith, but Ginsburg countered that the logic he relied on could be applied to other circumstances.

Gregory Dolin, a University of Baltimore law professor and director of the Center for Medicine and Law, said he sympathizes with Ginsburg's legal argument but that, as a practical matter, Alito was probably correct that the case would have limited impact.

"Companies really don't like controversy," he said. "I think that's what is going to keep the floodgates closed."

The contraception requirement was a byproduct of an amendment to the Affordable Care Act that was drafted by Sen. Barbara A. Mikulski, a Maryland Democrat and the longest-serving woman in Congress. The amendment required preventive health care for women to be offered as part of basic coverage plans, but Mikulski left it to the administration to decide what specifically should be covered.

Mikulski called the court's decision troubling.

"It sets a dangerous precedent," she said in a statement. "This ruling puts the personal opinion of an employer ahead of the medical opinion of a woman's doctor."

Baltimore Sun reporter Will Fesperman contributed to this article.

john.fritze@baltsun.com

twitter.com/jfritze

Copyright © 2014, The Baltimore Sun
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