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Health reform law faces legal challenges on contraceptive mandate

Do companies have the same First Amendment and religious rights as individuals?

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As employers prepare for new requirements under the Patient Protection and Affordable Care Act, unsettled legal challenges still could upend certain provisions of the landmark law.

The U.S. Supreme Court is expected to rule later this year whether the federal government can compel private, for-profit employers to provide cost-free coverage of contraceptive prescriptions to their employees.

Separately, lawsuits seeking to block the government from handing out premium subsidies for health care coverage purchased through the federally run insurance exchange are proceeding through federal courts in Oklahoma and Washington.

The Supreme Court agreed in November to hear arguments in two lawsuits brought by privately owned companies challenging the government's authority to enforce a provision of the health care reform law requiring employers with 50 or more full-time employees to provide their group health benefit plan members with cost-free insurance coverage for contraceptive prescriptions and other preventive care services.

Conestoga Wood Specialties Corp., based in East Earl, Pa., and Oklahoma City-based Hobby Lobby Stores Inc. are among the three dozen for-profit, family-owned businesses that sued to block the coverage requirement on the grounds that it violates their rights to free expression of religion under the First Amendment to the U.S. Constitution and the Religious Freedom Restoration Act.

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Both companies, which are owned by Christian families, have argued that the reform law's coverage requirement forces them to choose between providing health care benefits that conflict with their religious beliefs or paying a $2,000-per-year-per-employee penalty for excluding contraceptives from their insurance plans.

Conestoga asked the Supreme Court to overturn a series of lower court rulings rejecting its challenge to the requirement. Conversely, the U.S. Department of Health and Human Services is seeking reversal of an appeals court's decision in June granting Hobby Lobby's request for a temporary exemption from the coverage requirement, pending the final outcome of the company's lawsuit.

Hearing dates for the cases had not been set last week. Separately last week, Supreme Court Justice Sonia Sotomayor granted a temporary restraining order barring enforcement of the mandate on Roman Catholic-related organizations while their appeals continue.

When deliberations begin in the cases brought by Conestoga and Hobby Lobby, legal experts said the high court's first task likely will be to determine whether private, for-profit companies — through their owners — have a right to free exercise of religion under the First Amendment and/or the religious freedom law and, by extension, legal standing to challenge a federal law.

“Assuming they decide that those challenges can stand, the next question becomes whether the contraceptive mandate represents a substantial burden on their free exercise of religion,” said Sarah Bassler Millar, a Chicago-based partner at Drinker Biddle & Reath L.L.P. “If so, the question then is whether the government has a compelling interest in overriding those protections and, if it does, whether the mandate is the least restrictive means of satisfying that interest.”

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Experts were divided in their predictions as to how the Supreme Court might rule.

Amy Gordon, a Chicago-based partner at McDermott Will & Emery L.L.P., said she thinks the companies have raised a valid argument for the protection of religious expression.

“I would like to think that the court will find that (the contraceptive requirement) is a violation, but it obviously remains to be seen whether or not they will do that,” Ms. Gordon said. “I wouldn't have guessed that the court was going to uphold the individual mandate in 2012, but they did.”

Conversely, Jeffrey Pasek, a Philadelphia-based member at Cozen O'Connor, said he thinks the Supreme Court is likely to reject the concept that companies are entitled to the same rights of religious freedom as individuals.

“It opens up an opportunity for companies to do an end-run around all of the civil rights laws that we've passed,” Mr. Pasek said. “It seems to me that a clean place for the court to draw a line would be to say that even though corporations do have some First Amendment rights — such as the right of free speech through advertising and political donations — it's quite another thing to say that they also have the right to turn around and impose the religious views of their owners on their customers or employees.”

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