Preventive strike

WASHINGTON--The latest opposition to the federal government's mandate that employers provide contraceptives in employee insurance plans comes not from Catholics but from evangelicals: The Southern Baptist Convention, at its annual meeting June 19-20, looked ready in mid-June to vote on a resolution against the mandate. And on June 8, the anniversary of the introduction of the Bill of Rights, religious groups held rallies against the mandate in 150 cities around the country.

But aside from a public backlash, the federal government is facing what several legal analysts call the biggest legal onslaught from religious groups in modern history. Religious groups and individuals have now filed 23 lawsuits in 15 states challenging the contraceptive mandate. Most of the plaintiffs are Catholic, but a handful are evangelical. The government is facing lawsuits from so many quarters, said Hannah Smith, a lawyer for several suing religious groups, because its mandate has encroached on such a wide swath of religious groups. Seven states-Nebraska, South Carolina, Michigan, Texas, Florida, Ohio, and Oklahoma- also have filed suit.

Belmont Abbey College, a Catholic college in North Carolina, kicked off the flurry of lawsuits back in November, and since then the plaintiffs (Belmont Abbey) and the defendants (the federal government) have been filing documents back and forth in court. The government, in its latest filing in May, offered a standard argument it makes in Obamacare lawsuits: It said the college lacks standing to sue. Because the regulations requiring contraceptive coverage aren't in effect yet and because the Department of Health and Human Services is reviewing aspects of the regulation, the college can't sue, the government argues. HHS has issued a notice that it will consider amending the regulation so insurers rather than the religious employers would provide free contraceptives to employees. Religious groups have dismissed that proposal as a shell game.

Belmont Abbey's lawyers responded in court filings that the final contraceptive regulation has already been issued and binds religious groups, regardless of any new regulations HHS has promised: "Defendants' arguments rely upon a series of non-binding and unenforceable press conferences, promises, and possible future rule-makings that defendants claim might eventually resolve the mandate's obvious constitutional and statutory deficiencies."

So far the agency hasn't issued any concrete "compromise" regulations, and no one knows how self-insured religious groups would provide themselves with free contraceptives, for example. Media reports have treated the HHS compromise proposal "like it's a done deal," said Smith, a Becket Fund for Religious Liberty lawyer who is working on four cases challenging the contraceptive mandate. "There are so many questions up in the air about how they're going to do this. ... The promise of making an additional rule doesn't make our case not ripe. If that were the case, the case would never be ripe."

In courts around the country where these lawsuits are going forward, the federal government has advanced this single argument, urging judges to dismiss the cases because the regulations are not yet final or in effect. Government lawyers have also filed motions for extensions, which lawyers for the religious groups see as delay tactics.

Smith believes the government's key argument will fail in court because of how the broader healthcare cases went forward. In those cases, the government also argued that challengers had no standing and the cases weren't ripe because the individual mandate penalties weren't in effect, but the cases went forward for the most part.

"When those cases were going through the courts, the penalties were much further off-six or seven years. In this case they're only one or two years ahead," she said. "The impact of these regulations affect [religious groups] now."

Religious groups are waiting to hear the Supreme Court's ruling on the broader healthcare law at the end of June. If the court strikes down the individual mandate, but allows the rest of the law to stand, the contraceptive cases would still go forward, Smith said. On June 11 the nation's largest health insurer, UnitedHealthcare, announced that regardless of the Supreme Court's ruling, it would continue to comply with some of the most popular elements of the healthcare law.

The insurer will continue to allow persons under the age of 26 to stay on their parents' plans, and will cover preventive care with no co-pay. That free preventive care would include contraceptives and sterilization, the insurer told The Washington Post, but religious employers or individuals who object to the coverage can have those elements removed from their plans.

That differs from how the law would work out now, where only churches and seminaries can decline to cover contraceptives and abortifacients.