In the wake of the U.S. Supreme Court's narrow decision to uphold the federal health care law, another challenge to the mandate for insurance coverage is headed toward the court. This one involves contraception, religion and, most likely, corporate "personhood."
So far, 42 suits have been filed in the nation's courts challenging the law's requirement that workplace health insurance plans cover birth-control pills, IUDs and other female contraceptives, without co-payments.
In the most important ruling to date, a federal appeals court in Chicago has blocked enforcement of the mandate against an employer -- not a church or a church-affiliated hospital or university, but an Illinois construction company whose principal owners, a married couple, are devout Catholics.
The owners, Cyril and Jane Korte, "would have to violate their religious beliefs to operate their company in compliance" with the requirement to provide contraception coverage, the Seventh U.S. Circuit Court of Appeals said in a 2-1 ruling Dec. 28.
Religious freedom is a First Amendment right that applies to corporations, the court said, citing the Supreme Court's January 2010 ruling declaring corporations' constitutional right to make unlimited political contributions from their treasuries. And the owners' rights may be violated by "coerced coverage of contraception," the appeals court said, even though insurers provide the coverage and employees make the final decisions.
An appeals court in Denver refused to shield another corporate employer from the contraception requirement Dec. 20 and Supreme Court Justice Sonia Sotomayor declined to intervene, noting that the case is at an early stage and involves unsettled issues.
The divergence, mirrored in decisions by individual federal judges, has led legal commentators to predict that the dispute will reach the high court by next year, two years after the 5-4 ruling upholding the law's crucial requirement that uninsured Americans purchase coverage or pay a tax penalty.
The court could also decide to put cases involving non-religious corporations on hold while addressing challenges by religious schools and hospitals, which have filed a majority of the 42 lawsuits. But those cases are on a slower track because of a controversy the Obama administration tried unsuccessfully to resolve.
The contraception mandate does not apply to churches and other religious institutions, but it covers church-affiliated entities that employ and serve members of the general public.
When many of those institutions protested being required to provide contraceptive coverage, President Barack Obama said he would issue regulations specifying that their insurers would be the ones to offer the coverage. That didn't mollify some schools and hospitals, but their suits are on hold until August, when the regulations are due.
Meanwhile, courts are grappling with religious-freedom claims by executives of secular corporations like the Kortes' K&L Contractors and the Hobby Lobby chain, based in Oklahoma City, whose emergency appeal was rejected by Sotomayor. Its chief executive, David Green, told the Catholic News Agency that the owners "seek to honor God by operating the company in a manner consistent with biblical principles."
Mark Scarberry, a Pepperdine University law professor who has written about constitutional law and religious freedom, said he thinks there's a "reasonable likelihood" the Supreme Court will exempt such employers from the contraception mandate.
Many religious people "see all of what they do through the lens of their faith," including the choice of insurance coverage for their employees, Scarberry said.
Erwin Chemerinsky, the law school dean at University of California, Irvine and a veteran Supreme Court observer and litigator, had a different view.
"Why should a corporation be regarded as having any religious beliefs?" he asked, noting that corporations are organized to shield their owners from individual liability. Religious freedom is a more personal, private right than the corporate free speech the Supreme Court invoked in the 2010 ruling, he said, noting that the court has also recognized a fundamental individual right to obtain and use contraceptives.