Credit: UC Irvine on Flickr, under Creative Commons (CC BY-NC-ND 2.0).
(WOMENSENEWS)--The Obama administration's latest compromise on the hotly disputed contraception provision of the Affordable Care Act has some small businesses seeing red.
Fourteen have filed lawsuits in cases now working their way through the district courts.
People on both sides of the debate predict that the issue will wind up being considered by the Supreme Court and on the docket as early as January 2014.
"The proposed rule does nothing to protect the religious liberty of millions of Americans who own small businesses and view their businesses as a form of religious stewardship and an integral part of their lives," said David B. Waxman in a phone interview.
Waxman is senior counsel with the Washington-based Jubilee Campaign's Law of Life Project that on Aug. 23 last year filed a lawsuit challenging the federal mandate on behalf of Triune Health Group, a health management company in Lamont, Ill., owned by Mary Anne and Christopher Yep.
"Devout Catholics, the Yeps believe that the mandate would force them to violate their conscience by providing health insurance that covers contraceptives, sterilization and early abortion inducing drugs," said Waxman.
The compromise allows religiously affiliated institutions, such as Catholic hospitals and Evangelical Christian colleges, to avoid paying directly for contraceptives. But for-profit companies such as Triune Health, whose owners say they are also guided by religious principles, are required to offer health coverage for contraceptives, considered a key victory by many women's advocates.
Third Party Coverage
Under the proposed rules issued Feb. 1 by the Department of Health and Human Services, religious nonprofits don't have to directly offer coverage that includes contraception but must provide this coverage for female employees through a third party. Private insurers can pick up the tab for all FDA approved contraceptives, including IUDs and morning after pills that some religious groups believe produce early abortion. A study released last week by the Centers for Disease Control and Prevention found a rising use of emergency contraception in the United States.
These insurers' higher costs will be compensated by lower user fees for participants in state-based health exchanges, which are scheduled to begin operating Jan. 1, 2014.
Triune is one of nine for-profit businesses that have sued and been able to win a delay of the requirement. The other five businesses that sued were not granted temporary stays and are subject to a fine of $100 per employee per day. The fines took effect Jan. 1.
"Paying thousands of dollars in fines will quickly deplete the resources of family-owned business firms like Triune and drive them out of business," said Waxman.
New lawsuits are being filled every day by privately owned businesses that, according to the Small Business Administration, are the backbone of the U.S. economy, employing 62 percent of the work force and creating 78 percent of new jobs.
So far, only one case has been dismissed on its merits. In October 2012, a district court in Missouri rejected the claim by Frank O'Brien, the owner of a St. Louis mining company, that the contraception mandate infringed on his religious beliefs.
The court said the mandate does not prevent O'Brien, a Catholic, from "keeping the Sabbath, providing a religious upbringing for his children or from participating in a religious ritual such as communion." The court said those religious practices were distinct from contributing to a health plan that an employee might use to obtain contraception.
Brigitte Amiri, a senior staff attorney for the American Civil Liberties Union Reproductive Freedom Project, which filed a friend of the court brief in the Missouri case, hailed the ruling.
"The decision was a major victory because the court recognized that the religious liberty claims cannot be used as a means to force one's religious practices on others, which in this case was women," Amiri said in a phone interview.
Hobby Lobby, the largest firm with 13,500 employees in 42 states, is eager for a decision because the company faces $1.3 million in fines each day because it did not receive a stay and is now before the Court of Appeals for the 10th Circuit.
Unlike nine of the 14 litigants who are Catholics opposed to providing all forms of contraception coverage, Hobby Lobby, based in Oklahoma City, has covered some forms of birth control in the past.
The Green family, who founded and own the 525 arts and crafts stores, are Evangelical Christians who object to so-called morning after pills as well as IUDs because they can prevent implementation of the embryo in the wall of the uterus, which they consider a form of early abortion.
Amiri predicts that the birth control mandate will be upheld because numerous court decisions have prohibited employers from imposing religious beliefs on their employees.
"Courts have rejected arguments by employers who have tried to pay female employees less because of their belief that the Bible says men should be heads of the household," she said.
Some 68 percent of Catholics who are at risk of unintended pregnancies use contraception, 75 percent of Evangelical Christians do, according to the New York-based Guttmacher Institute.
Birth control costs can add up because the typical woman spends 30 years avoiding pregnancy. Birth control pills can cost as much as $90 a month for some of the newer brands, notes Planned Parenthood. The upfront cost of an IUD can range from $500 to $1,000.
Sharon Johnson is a New York based freelance writer.
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