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Friday, May 17, 2024 | Back issues
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Challenge to Obamacare Wages On in 7th Circuit

CHICAGO (CN) - The battle over Obamacare's contraception mandate waged on in the 7th Circuit today, nearly six months after the Supreme Court's controversial Hobby Lobby decision.

Like Hobby Lobby, the challenge at hand involves a Catholic group objecting to a provision of the Patient Protection and Affordable Care Act that carries penalties for employers that fail to provide health insurance including contraception and sterilization procedures.

Though the government voluntarily exempted churches from this mandate, the Supreme Court indicated in Hobby Lobby that some closely held corporations might qualify for exemption as well.

California's Biola University and Indiana's Grace College and Seminary brought the challenge that played out in the 7th Circuit today. The Diocese of Fort Wayne-South Bend and Specialty Physicians of Illinois are recent intervenors, claiming that they should enjoy the same total exemption that churches do.

Upon announcing the suit last year, Biola President Barry H. Corey wrote: "The Obama administration's mandate forces us to act against our own doctrinal statement, which upholds the sanctity of human life. It unjustly intrudes on our religious liberty as protected under the U.S. Constitution and makes a mockery of our attempts to live our lives according to our faith convictions, time-honored and long protected."

The administration granted an accommodation to entities seeking to avoid the mandate by letting them offer only that does not include contraception. In such cases, however, the insurer will be compelled to pay for such services itself.

U.S. District Judge Jon DeGuilio in Indiana granted the plaintiffs a preliminary injunction last year against the mandate in spite of this accommodation.

Speaking for the government, Patrick Nemeroff insisted that the accommodation is enough and that plaintiffs have no right to challenge actions that a third party - namely, an insurer - had to take.

"The purpose of the accommodation is to unplug the extension cord by allowing the employer to state their objection," Nemeroff said.

Judge Daniel Manion interrupted: "And all the while the employer is providing insurance."

Manion, who attended Notre Dame, a university at which his father served as law school dean and which recently lost in its own suit against the contraception mandate, seemed to favor the plaintiffs all day.

"With all respect, I don't think that's correct," Nemeroff said. "The employer gives the insurance, but then the government requires the insurer to provide contraception."

Manion noted: "But the third party cannot operate separately."

Nemeroff shifted his emphasis to the compelling government interest in providing contraception, which he said Hobby Lobby permitted.

"What happens if the third party insurer objects too?" Judge David Hamilton asked, foreshadowing a likely future challenge to the act.

"That hasn't happened yet," Nemeroff said. "I can't say what the department would do."

Later, the plaintiffs noted that there is already one Southern Baptist-affiliated insurer, Guidestone , which has obtained its own injunction against the contraception mandate.

Nemeroff repeatedly pointed out that his time was nearly up, but the court continued to grill him, with Manion repeatedly bringing up the issue of unwanted pregnancies.

"There are a number of reasons besides unwanted pregnancies for providing contraception coverage," Nemeroff said.

"Like what?" Manion cut in.

Nemeroff listed various health reasons before surprisingly conceding that "if the court gave plaintiff more time to seek another injunction that might be reasonable," given the lack of a pressing emergency.

The plaintiffs' attorney, Matthew Kairis, had an easier time. He mostly restated the plaintiffs' arguments and fielded some questions from Hamilton, who pointed out somewhat grimly that once upon a time "some people wanted a single-payer system."

Hamilton pointed out that the government has long provided such accommodations, such as to conscientious objectors during the Vietnam draft. "Has anyone ever argued that the accommodation itself was objectionable?" he asked.

"If the conscientious objector believes the accommodation doesn't wash his hands of the sin of the war..." Kairis began.

"So the government must excuse someone from service entirely?" Hamilton wondered.

Kairis took the tone of a party that has already won in substance, simply noting that no one was arguing that the government faced an emergency in this case.

His colleague, Gregory Baylor, took a more aggressive approach.

"There are 350,000 congregations in the U.S., and the government has categorically exempted all of them from the contraception requirement based on the fact that they're highly likely to employ people who share their faith," Baylor said. "Well, that applies to plaintiffs, who draw their workforce from people who share their faith."

Hamilton noted that if what the plaintiffs wanted was consistency, the government could always impose the requirement on churches as well.

"The religious exemption existed right from the beginning. They shouldve said that any entity with similar characteristics should be exempt too," Baylor replied.

But Hamilton wondered again how much government compulsion was required to amount to forcing a religious organization to violate its beliefs. "Somebody could pick any level of entanglement with a law they disapprove of," and say that it violated their beliefs, "including paying taxes," he said.

Baylor shifted to policy arguments: "Twenty-six states have contraception mandates, but have they worked? Have they decreased unwanted pregnancies? They have not. So I fear that this is violating my clients' beliefs without a significant benefit."

Judge Ilana Rovner participated in the hearing telephonically and repeatedly thanked the participants for their patience.

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