Arguments over religious challenge to ACA contraceptive mandate set for May

By Bethany Krajelis | Apr 4, 2013


The U.S. Court of Appeals for the Seventh Circuit will hear arguments in May over a pair of Highland business owners’ religious challenge to the contraceptive coverage mandate under the Affordable Car­e Act (ACA).

A split panel of the federal appeals court in late December granted an emergency motion for an injunction filed by Cyril and Jane Korte, and their company, Korte & Luitjohan Contractors (K&L). They brought their suit last fall in the U.S. District Court for the Southern District of Illinois.

They claim that the mandate, which requires employers to provide employee health benefits that include coverage for contraceptives, violates the Religious Freedom Restoration Act (RFRA) and the Free Exercise, Establishment and Free Speech clauses of the First Amendment.

A business in Indiana, Grote Industries, brought a similar suit in the Southern District of Indiana and the same divided panel of the Seventh Circuit granted its request for an injunction before consolidating it with Kortes’ suit.

The federal appeals court has scheduled a May 22 hearing to hear arguments in the consolidated suit, which, according to electronic court records, garnered at least a handful of amicus parties. The court allotted each side no more than 15 minutes for argument.

Court records show at least two amici curiae briefs were submitted in support of the federal government.

Some of the groups that signed on to those briefs include: the National Health Law Program, Mexican American Legal Defense and Educational Fund, Asian Pacific American Legal Center, National Hispanic Medical Association, Americans United for Separation of Church and State, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism and the Hindu American Foundation, among others.

The groups included in the brief submitted by the National Health Law Program contend that [t]he ACA’s contraceptive coverage provision is not unique.”

“Standards of medical care recognize that a woman’s ability to use contraception is critical to her health and well-being,” the brief states. “The federal government has long-recognized these standards of medical care by enacting laws and policies that ensure women’s access to health insurance benefits that include contraception coverage.”

The Americans United for Separation of Church and State submitted another brief in support of the government on behalf of a handful of other groups, claiming that the plaintiffs failed to show that the mandate imposes a substantial burden on their religious exercise and would have far-reaching implications.

“[T]he exemption they seek would authorize employers to intrude on private healthcare relationships, subjecting employees’ private medical decisions to employers’ religion-based vetoes,” the brief states, adding that if the plaintiffs’ argument was accepted, it “could allow other employers to withhold insurance coverage for any number of other medical treatments.”

Electronic court records do not show whether any briefs were submitted in support of the plaintiffs.

The plaintiffs both argue that the mandate puts them in the position of having to basically choose between complying with something that goes against their religious beliefs as Catholics or paying fines that they claim would hurt their businesses.

In both cases, the majority of the Seventh Circuit – Judges Joel M. Flaum and Diane S. Sykes -- determined that there was a “reasonable likelihood” that the plaintiffs would prevail on their religious argument and as such, granted the injunction requests.

The dissenting justice, Judge Ilana Diamond Rovner, argued that the plaintiffs were not entitled to an injunction because they had not shown that requiring their business to comply with the mandate imposed a substantial burden on the exercise of their religious beliefs.

Edward White, senior counsel at the American Center for Law & Justice (ACLJ) in Michigan, represents the Kortes and Indianapolis attorney Michael Wilkins represents the Grotes.

Mark Stern and Alisa Klein, attorneys in the civil division of the U.S. Department of Justice, represent the government.

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