One outcome of President Barack Obama's re-election is that the lawsuits over his administration's birth control mandate will continue. Some judicial decisions could be as early as this week.
There are now 40 lawsuits over the Department of Health and Human Services requirement that employers cover contraception, sterilization and some abortifacient drugs in their employer provided health insurance. The plaintiffs are suing on religious freedom grounds. There is a religious exemption, but most religious non-profit organizations and no for-profit companies qualify for the exemption.
Before last week, there was question of whether these suits would proceed because Republican presidential candidate Mitt Romney promised to revoke the mandate if he won the election.
The current suits can be considered in two different categories: those from non-profit organizations and those from for-profit companies.
For the non-profits, the first question the courts will need to settle is whether the plaintiffs can sue at this time. The Obama administration has asked the courts to dismiss the suits based upon the fact that the administration has promised to provide an accommodation before the mandate takes effect, according to Kyle Duncan, general counsel for The Becket Fund, which represents some of the plaintiffs, in a Tuesday interview with The Christian Post.
HHS has provided a "safe harbor" for non-profits with religious objections to the mandate. Absent a court throwing out the mandate, they will have until August 2013, to abide by the mandate. In the meantime, though, these organizations must plan for their future contracts with insurance companies and employers without knowing the outcome of their court challenges.
The for-profit companies that are suing do not qualify for the "safe harbor" provision, so those court cases will likely be resolved first. The largest of these companies is Hobby Lobby, a Christian company represented by Becket Fund.
Two courts have issued injunctions to keep the mandate from going into effect for two Catholic business owners in Colorado and Michigan. The injunctions mean that those companies will not have to implement the mandate right away. The injunctions are issued because the courts believe that the plaintiffs are likely to win their lawsuits, according to Duncan.
Becket Fund has asked for an injunction for Hobby Lobby and they expect a decision soon, perhaps this week.
One Catholic business in Missouri was refused an injunction and that decision is currently being appealed.
In the cases for the for-profit companies, the Obama administration is making the argument that for-profit companies have no religious liberty rights. They make this claim even for the for-profit companies with an explicitly religious mission, such as Tyndale Publishing, which publishes Bibles and other Christian texts.
"It's an interesting position. We don't think there is any support for it," Duncan said.
Duncan expects to hear more court judgments in the HHS mandate over the next couple of months. He is also hopeful that the cases could be resolved by next Summer.