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Challenges to Obama birth control mandate could go to Supreme Court

A requirement in the Affordable Care Act mandating most employers to provide contraception for free with health care coverage, has sparked dozens of lawsuits from both religious organizations, and business owners. The Department of Health and Human Service is working to accommodate faith-based groups.

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At the center of the cases is the Religious Freedom Restoration Act, the 1993 law that bars the government from imposing a substantial burden on the exercise of religion for anything other than a compelling government interest pursued in the least restrictive way. The question of how or whether these criteria apply when owners of for-profit businesses have a religious objection to a government policy hasn't been fully tested.

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"It's more natural for people to say Notre Dame exercises religion, but when you say this power tool company exercises religion, you have to explain it little more, I think the claims are really the same," said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which represents many of the plaintiffs.

Brigitte Amiri, senior staff attorney at the American Civil Liberties Union, argued the business owners are trying to use a religious liberty claim to deny benefits to someone else.

"We don't think that religious liberty claims can be used as a way to discriminate against women employees — using those claims to take away someone else's benefits and services," Amiri said.

In the lawsuits from faith-affiliated groups, such as the University of Notre Dame, judges around the country have generally said it would be premature to decide the legal issues until the federal rule for religiously affiliated organizations is finalized.

In the cases involving business owners, judges have granted temporary injunctions to businesses in nine of 14 cases they've heard, while questions about for-profit employers and religious rights are decided, according to a tally by the Becket Fund.

In a case brought by Cyril and Jane Korte, Catholic owners of Korte & Luitjohan Contractors in Illinois, a three-judge panel granted a temporary injunction, ruling 2-1 that providing employees insurance coverage that includes birth control would violate the Kortes' faith.

"It is a family-run business, and they manage the company in accordance with their religious beliefs," the judges wrote.

The dissenting judge argued that the company will not be paying directly for contraception but instead will purchase insurance that covers a wide range of health care that could include birth control, if the woman decides with her physician that she needs it.

"What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object," the dissenting judge wrote.

Similar reasoning was used by courts denying an injunction requested by the arts and crafts chain Hobby Lobby and religious book-seller Mardel Inc., which are owned by the same evangelical family. Oklahoma-based Hobby Lobby calls itself a "biblically founded business" and is closed on Sundays.

The U.S. district judge who first considered the request said, "Hobby Lobby and Mardel are not religious organizations."

"Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion," the ruling said.

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