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From Health Law Daily, April 22, 2013

Preliminary injunction granted against requirement to provide contraceptive coverage

By Geri Szuberla, JD, LLM

The federal court granted a preliminary injunction to a Catholic family and its businesses against the federal mandate that health plans provide certain preventive health services to women (Geneva College v Sebelius, April 19, 2013, Conti, J). Wayne L. Hepler (Hepler) and his family asked for an order protecting them from complying with the requirement that they include coverage for certain services as part of the health insurance that they provide to themselves, their employees, and their families in the plan year that begins on July 1, 2013. They objected to the requirement in the new health care law mandating that they provide coverage for abortifacient products and contraceptives such as ella, Plan B, and intrauterine devices (IUDs), as well as sterilization procedures and patient education and counseling for women of reproductive capacity. They argued that the law requiring them to provide the objected to services, 42 U.S.C. sec. 300gg-13(a)(4) (the mandate), violates the Religious Freedom Restoration Act of 1993, 42 U.S.C. sec. 2000bb-1 (the RFRA), and the Free Exercise Clause of the First Amendment. The court held that the Helper family showed a likelihood of success on the merits of their claim pursuant to the RFRA, as well as strong showings with respect to the other preliminary injunction requirements.

Substantial burden. Geneva College was dismissed as a party to this case on March 6, 2013, and Hepler filed the Motion for Preliminary Injunction (individually and on behalf of WLH Enterprises (WLH)), joined by adult members of his family, and Seneca Hardwood Lumber Company, Inc. (SLHC). According to federal law and regulations, the health plans for Helper, his family and their businesses must comply with the mandate for the next plan year that begins on July 1, 2013. The plans are neither grandfathered under the law nor protected by the temporary safe harbor for non-profit organizations that are not considered “religious employers.”

Pursuant to the RFRA, the government may not “substantially burden” a person’s exercise of religion, even if the burden results from a rule of general applicability, the court said. Helper and his family are faced with having to choose between violating their deeply held religious beliefs and being forced to cause SHLC, a closely held corporation controlled by the Helpers, to terminate their health insurance coverage, which also burdens their religious exercise, it found. They explicitly object to the requirement that they, through their businesses, provide the objectionable coverage to themselves and their families, the court said. They are likely to succeed on the merits of a permanent injunction with respect to the substantial burden issue, the court held.

Compelling interest. The RFRA allows the government to impose a substantial burden on the exercise of religion in furtherance of a compelling government interest, as long as the burden is the least restrictive means of furthering that interest. Over 190 million individuals have already been exempted from the mandate’s requirements as a result of the grandfathering provisions in the Affordable Care Act (ACA), the court noted. In addition, ACA contains several other provisions that explicitly or implicitly exclude many other individuals and entities from the mandate, as the Helpers argued. The court held that the federal government did not show that the burden it imposes furthers a compelling interest, nor did it demonstrate that it is the least restrictive means of furthering the government’s interest.

The court said that the Proposed rule issued on February 6, 2013 at 78 Fed. Reg. at 8456, 8462, which would broaden the universe of organizations eligible for an exemption from the contraceptive requirement, shows that there is a less restrictive means of imposing the mandate.

The case number is 2:12-cv-00207.

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