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HEALTH CARE REFORM-D.D.C.: Christian publisher not required to cover all contraception

By Michelle L. Oxman, JD, LLM

Tyndale House Publishers, Inc., (THP) a for-profit Christian publisher, was granted a preliminary injunction under the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb-1) against the enforcement of the contraceptive coverage requirement of the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148) (Tyndale House Publishers, Inc. v Sebelius, November 16, 2012, Walton, R). The statute imposed a substantial burden on the exercise of religion by THP's owners because THP was subject to lawsuits and substantial penalties if its insurance coverage for employees did not meet the requirements of the statute. The government did not show that applying the requirement to THP would serve a compelling interest. The protection of women's health and the promotion of equality between men and women were not sufficiently compelling because: (1) THP only sought to exclude three specific birth control methods; and (2) so many workers were not covered by the law that the government did not treat its interests as compelling.

The employer's standing. The government argued that THP did not have enforceable rights under the RFRA because it was a for-profit business entity. To determine whether THP could represent the interests of its owners, the court found it necessary to examine the ownership structure. THP is owned by four entities: the Tyndale House Foundation, a nonprofit religious organization; the Tyndale Trust; and two trusts for the benefit of the widow and children of THP's founder. The Foundation owned a 96.5 percent interest in THP and used them to support a variety of Christian ministries. The Tyndale Trust owned 84 percent of the voting shares. The same individuals served on the boards of the Foundation and the Tyndale Trust, and each board member was required to sign a statement of faith. The organizations had nearly identical statements of beliefs and policies. The court concluded that THP was an extension or an alter ego of its owners and was permitted to represent their interests. Therefore, it was unnecessary to consider whether THP had rights under the RFRA.

The health coverage. THP, which employs 260 people, is self-insured. It did not meet the requirements for a "grandfathered" plan. It covered contraception except for three methods: Plan B, called the "morning after pill," ella, known as the "week after pill," and intrauterine devices (IUDs). THP contended that these three methods may cause the spontaneous abortion of an embryo, so that requiring coverage violated the owners' religious beliefs in the sanctity of human life from the moment of conception or fertilization. The court found that requiring THP to cover all methods of contraception placed a substantial burden on the owners' exercise of their religious beliefs. As a self-insured business, THP paid directly for the employees' health care, and it would be required to take an action-paying for the services-hat violated the owners' religious beliefs.

The government's interests. The government contended that the requirement to cover all methods of contraception served the public interest in protecting women's health and the health of their families. Unintended pregnancy poses risks to the woman, and when there is only a short period between births, the younger babies are more likely to have low birth weight and other health problems. In addition, access to contraception without cost sharing is necessary to promote equality between men and women. The court reasoned that there must be a compelling interest in applying the challenged requirements to the particular plaintiff, and the requirement must be the least restrictive available alternative. The government's interests already were furthered because THP covered all other forms of birth control. It was not necessary to require THP to provide these three methods that violated its owners' religious beliefs. Further, the court reasoned, the law was underinclusive because there were so many exceptions to the requirement. In addition to the exemption for religious organizations, the law did not apply to employers with fewer than 50 employees or to grandfathered plans. The court noted that so many people would not be covered by the law that it did not find the government's claim of a compelling interest to be believable.

The case number is 12-1635 (RBW).

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