Nov 15

Paulsen, Berg cited in federal appeals court decision upholding religious freedom objections to contraception mandate of Affordable Care Act

Published on: Friday, November 15, 2013

A federal appeals court in Chicago on Nov. 8 upheld religious freedom objections against the contraception mandate of the Affordable Care Act, citing two University of St. Thomas School of Law faculty – professors Michael Paulsen and Thomas Berg – in the majority opinion.

The contraception mandate requires employers to provide coverage for contraception and sterilization procedures in their employee health care plans on a no-cost-sharing basis, including some methods that objectors assert can cause abortions.  With the recent 2-1 decision, the U.S. Court of Appeals for the 7th Circuit becomes the third federal appellate court to exempt objecting corporations and individuals from enforcement of the mandate.  The 3rd Circuit, located in Philadelphia, has ruled the opposite way, setting up the issue for likely U.S. Supreme Court review.

Paulsen,-MichaelNoting that the mandate "substantially burdens [the plaintiffs'] religious exercise rights," the 7th Circuit majority references Paulsen's A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 MONT. L. REV. 249, 253 (1995), where he asserts the Religious Freedom Restoration Act of 1993 (RFRA) is structured as a "sweeping 'super-statute,' cutting across all other federal statutes (now and future, unless specifically exempted) and modifying their reach."

The court proclaims the RFRA operates as "a kind of utility remedy for the inevitable clashes between religious freedom and the realities of the modern welfare state, which regulates pervasively and touches nearly every aspect of social and economic life," citing Berg’s What Hath Congress Wrought? An Interpretive Guide to the Religious Freedom Restoration Act, 39 VILL. L. REV. 1, 25-26 (1994), for this assertion.Berg,-Tom

Berg's The Voluntary Principle and Church Autonomy, Then and Now, 2004 BYU L. REV. 1593 (2004), also was cited in the opinion.

The cases the court decided – Korte v. Sebelius, 12-3841, and Grote v. Sebelius, 13-1077 – were filed by two Catholic families and the businesses they run: one, a construction company in Illinois, and the other, a manufacturing firm in Indiana. The businesses are secular and for profit, but they operate in conformity with the faith commitments of the families that own and manage them. The mandate remains in force against employers who do not have religious objections to its particular requirements.

"These cases – two among many currently pending in courts around the country – raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substantially burdens their religious-exercise rights," U.S. Circuit Judge Diane Sykes wrote in the majority opinion. "Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can."

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