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Judge Gorsuch nominated to fill Supreme Court vacancy

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WASHINGTON — President Donald Trump nominated Judge Neil Gorsuch to fill the seat on the U.S. Supreme Court that has been empty since the death of Justice Antonin Scalia last February.

Judge Neil Gorsuch speaks after U.S. President Donald Trump nominated him to be a U.S. Supreme Court justice Jan. 31 at the White House in Washington. If confirmed, Gorsuch will fill the seat that has been empty since the death of Justice Antonin Scalia last February. (CNS photo/Michael Reynolds, EPA)

Judge Neil Gorsuch speaks after U.S. President Donald Trump nominated him to be a U.S. Supreme Court justice Jan. 31 at the White House in Washington. If confirmed, Gorsuch will fill the seat that has been empty since the death of Justice Antonin Scalia last February. (CNS photo/Michael Reynolds, EPA)

Gorsuch is a man the country needs, Trump said in announcing his nominee the evening of Jan. 31. He added that his pick for the high court already has had bipartisan support. “Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline,” he said.

When Trump announced his choice at the White House, in the audience was Maureen McCarthy Scalia, the widow of the late justice. One of the couple’s children also was present: Father Paul Scalia, a priest of the Diocese of Arlington, Virginia.

In his remarks, Gorsuch said he was thankful for friends, family and faith giving him balance. He also said he was honored and humbled to be chosen as a nominee to the nation’s highest court. He described Scalia as “lion of the law” and said he misses him.

He said he respects the fact that Congress, not the courts, writes new laws. “It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”

Several news outlets reported that hundreds of demonstrators held a rally outside the Supreme Court building to protest Trump’s choice of Gorsuch. Pro-life organizations, however, were quick to praise the president’s selection of someone who they said will “carry on the legacy” of Scalia.

Gorsuch, judge of the U.S. Court of Appeals for the 10th Circuit, is 49, making him the youngest Supreme Court nominee in 25 years. He was born in Denver. He currently lives outside of Boulder, Colorado, with his wife and two daughters, he lived in the Washington area as a teenager when his mother, Anne Gorsuch Burford, was appointed by President Ronald Reagan to head the Environmental Protection Agency. Gorsuch attended the Jesuit-run Georgetown Preparatory School where he won a national debate championship.

Gorsuch has the typical qualifications of a high court justice. He graduated from Columbia, Harvard and Oxford, clerked for two Supreme Court justices and also worked for the Department of Justice.

He also is an adjunct law professor at the University of Colorado and he wrote a 2009 book arguing against the legalization of assisted suicide and euthanasia.

Gorsuch hasn’t written a ruling specifically on abortion but he has strong views on religious liberty. He sided with the Little Sisters of the Poor in their challenge of the contraceptive mandate of the Affordable Care Act. And in Hobby Lobby Stores v. Sebelius, in June 2013, the 10th Circuit ordered the federal government to stop enforcement of the federal mandate against Hobby Lobby, the Oklahoma-based Christian chain of retail arts and crafts stores. In his concurrence, Gorsuch said the contraception mandate substantially burdened the company’s religious exercise, a decision the Supreme Court later upheld.

Gorsuch is an Episcopalian. Scalia, who had been one of six Catholic members of the court, was often described as its most conservative voice and known for his strict interpretation of the Constitution’s intent.

“All too often, our efforts to protect unborn children and other vulnerable humans have been overridden by judges who believe they have a right to impose their own policy preferences,” Carol Tobias, president of National Right to Life, said in a statement.

“We are heartened that Judge Gorsuch appears to share Justice Scalia’s view that federal judges are constrained to enforce the text and original intent of constitutional provisions, and on all other matters should defer to democratically elected lawmakers,” Tobias added.

Priests for Life, the American Life League, the Susan B. Anthony List and other groups echoed those sentiments.

Marjorie Dannenfelser, president of the Susan B. Anthony List, called Gorsuch “an exceptional choice.”

“In the coming days, we will mobilize the pro-life grass-roots nationwide and in key Senate battleground states to urge the Senate to swiftly confirm” she said in a statement. “Should pro-abortion Democratic Senators choose to filibuster this immensely qualified nominee, they do so at their own political peril.”

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Supreme Court rules some for-profit companies have religious rights, can’t be required to cover contraception

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Catholic News Service

WASHINGTON — In a narrowly tailored 5-4 ruling, the Supreme Court June 30 said closely held companies may be exempted from a government requirement to include contraceptives in employee health insurance coverage under the Religious Freedom Restoration Act.The court said that Hobby Lobby and Conestoga Woods, the two family-run companies that objected to the government mandate that employees be covered for a range of contraceptives, including drugs considered to be abortifacients, are protected from the requirement of the Affordable Care Act. The opinion essentially held that for-profit companies may hold protected religious views.

Pro-life demonstrators celebrate June 30 outside the U.S. Supreme Court in Washington as its decision in the Hobby Lobby case is announced. The high court ruled that owners of closely held corporations can object on religious grounds to being forced by the government to provide coverage of contraceptives for their employees. (CNS photo/ Jonathan Ernst)

But the court also said that government requirements do not necessarily lose if they conflict with an employer’s religious beliefs.

The ruling is not a slam-dunk for all entities that oppose the contraceptive mandate for religious reasons. The court noted that cases challenging the mandate for nonprofit entities, such as Catholic colleges and faith-based employers, are pending and that the June 30 ruling doesn’t consider them. The decision also did not delve into whether the private employers have religiously motivated protection from laws under the First Amendment.

It said the government failed to satisfy the requirement of RFRA, a 1993 law, that the least-restrictive means of accomplishing a government goal be followed to avoid imposing a restriction on religious expression.

The majority opinion said the ruling applies only to the contraceptive mandate and should not be interpreted to hold that all insurance coverage mandates — such as for blood transfusions or vaccinations — necessarily fail if they conflict with an employers’ religious beliefs.

Justice Samuel Alito wrote the primary holding, which was joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. Justice Anthony Kennedy wrote a separate concurring opinion, which agreed with the ruling, but made clear that while the opinion applies to the particular companies involved in this case, it’s not a sweeping condemnation of the key elements of the contraceptive mandate itself.

“It is important to confirm that a premise of the court’s opinion is its assumption that the HHS regulation here furthers a legitimate and compelling interest in the health of female employees,” wrote Kennedy in his concurrence. He went on to say that the federal government failed to use the least restrictive means of meeting that interest, pointing out that it has granted exemptions from the mandate for employees of nonprofit religious organizations.

“That accommodation equally furthers the government interest, but does not impinge on the plaintiff’s religious beliefs,” he wrote.

In her dissent with the main opinion, Justice Ruth Ginsburg called the court’s decision one of “startling breadth” allowing commercial enterprises to “opt out of any law” except tax laws that they “judge incompatible with their sincerely held religious beliefs.”

Ginsburg, joined on its merits by Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer, said she was “mindful of the havoc” the ruling could produce and noted that the court’s emphasis on RFRA failed to take into account the impact the decision would have on “third parties who do not share the corporation owners’ religious faith.” She said she believed the law was enacted by Congress “to serve a far less radical purpose.”

“Until today,” she wrote, religious exemptions have not been extended to the “commercial profit-making world” because these groups do not exist to foster the interests of those of the same faith, as religious organizations do. She also questioned why the court failed to make the distinction between a group’s members of diverse beliefs and members who share the same faith.

“The court’s determination that RFRA extends to for-profit corporations is bound to have untoward effects,” she said, adding that even though the court “attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.”

As a result, she said, “RFRA claims will proliferate.”

 


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Supreme Court hears arguments in companies’ challenge to health-care mandate

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WASHINGTON — Oral arguments in two cases before the U.S. Supreme Court March 25 focused on whether for-profit corporations have religious grounds to object to the new health care law’s requirement that most employers provide contraceptive coverage in their employee health plans.

Crowds on both sides of the issue gathered outside the Supreme Court on a cold, snowy morning, holding aloft signs and chanting for their cause.

Supporters and opponents of a federal contraceptive mandate for employer health plans gather in front of the U.S. Supreme Court in Washington March 25. The Supreme Court heard oral arguments in lawsuits filed against the mandate by Hobby Lobby Stores and Conestoga Wood Specialties on religious rights grounds. (CNS photo/Tyler Orsburn)

Inside the court, the arguments lasted for 90 minutes, an extension of the usual 60 minutes, and the justices in their questions for the lawyers arguing the cases seemed divided on the issue. At the center was a close inspection of the 1993 Religious Freedom Restoration Act, known as RFRA, which allows for religious exceptions to general laws in certain circumstances.

The cases — Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius — made their way to the Supreme Court after federal appeals courts issued opposite rulings about the companies’ claims to a religious rights exemption to the contraceptive mandate of the health care law.

At issue is the Affordable Care Act’s mandate that most employers, including religious employers, provide employees coverage of contraceptives, sterilization and some abortion-inducing drugs free of charge, even if the employer is morally opposed to such services.

Both secular businesses claim the contraceptive mandate of the health care law violates the First Amendment’s free exercise clause and their religious liberty rights under RFRA.

The 1993 law says that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.

The legal question is whether RFRA protects a for-profit company from having to provide a benefit to which employees are entitled under federal law but to which the owners have religious objections.

Justice Ruth Bader Ginsburg, who noted that RFRA was passed overwhelmingly with support from both political parties, said it would not have gained such support if Congress thought the law would confer religious rights to corporations.

Justice Elena Kagan said the arguments in favor of the companies’ religious rights could turn RFRA into something that would put “the entire U.S. code” under intense constitutional scrutiny for possible burdens to corporate religious rights. For example, she said companies would be able to object on religious grounds to laws on sex discrimination, minimum wage, family leave and child labor.

That point was raised by the Obama administration in its brief, saying a ruling in favor of businesses could undermine laws governing immunizations, Social Security taxes and minimum wages.

Chief Justice John Roberts noted that the exaggerated amounts of religious exemptions that could be claimed by employers could be avoided in a court ruling limited only to corporations that pass their earnings and losses to their shareholders, which would exclude bigger companies claiming religious freedom rights.

Justice Anthony Kennedy, described as the swing vote in this case, asked how the government could require the family-owned companies in question to provide the mandated insurance contraception coverage when it had already offered exemptions and accommodations to other groups, which was one of the plaintiff’s arguments.

Hobby Lobby is an Oklahoma-based chain of more than 500 arts and crafts stores with more than 13,000 employees owned by a Christian family, the Greens. Conestoga Wood Specialties is a Pennsylvania-based kitchen cabinet-making company with 950 employees owned by a Mennonite family, the Hahns.

Conestoga Wood Specialties objects to complying with any portion of the mandate. Hobby Lobby is not opposed to covering birth control in its employee health plan and, in fact, already provides that benefit. What the Green family objects to is being required to cover contraceptive drugs considered to be abortifacients, such as the morning-after pill and Plan B.

Hobby Lobby’s owners have stated that their “religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception.”

In Sebelius v. Hobby Lobby Stores, the Green family won a ruling by the 10th U.S. Circuit Court of Appeals, which said their craft stores and Mardel, a chain of 35 Christian bookstores, could proceed with seeking an injunction protecting the companies from meeting parts of the contraceptive mandate issued by the Department of Health and Human Services as part of the health care law. The government appealed the decision.

The other case, Conestoga Wood Specialties v. Sebelius, is an appeal by the Hahn family, the Mennonite owners, of a 3rd U.S. Circuit Court of Appeals ruling that said they had to comply with the contraceptive requirement. The circuit court ruled that as a for-profit, secular corporation, Conestoga Wood and its owners are not protected by the Free Exercise clause of the First Amendment.

During oral arguments at the Supreme Court, the justices asked why the companies didn’t just avoid the contraception issue by not offering health care coverage to its employees and paying the tax penalty instead, and former U.S. Solicitor General Paul Clement, who presented the companies’ arguments, said Hobby Lobby’s owners, at least, wanted to provide health insurance and felt it would be hard to attract workers without it.

Supporters of the Obama administration’s position that the two for-profit companies should not be exempted from the mandate have argued that the businesses are claiming religious rights the Constitution gives to individuals, not corporations.

U.S. Solicitor General Donald Verrilli Jr., who presented the administration’s arguments, emphasized that if the courts allowed for-profit companies to deny mandated coverage, the employees would be denied benefits the government has decided they should have.

He repeatedly mentioned U.S. v. Lee, a 1982 Supreme Court ruling that said an Amish employer could not be exempted from paying Social Security taxes for employees of his for-profit business.

That case has been raised in many of the “amicus” briefs on both sides of the mandate issue.

In the 1982 ruling, the court found that “while there is a conflict between the Amish faith and the obligations imposed by the Social Security system, not all burdens on religion are unconstitutional,” the court said. “The court may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.”

Dozens of groups with an interest in the outcome of the cases filed “amicus,” or friend-of-the-court, briefs including one submitted by the U.S. Conference of Catholic Bishops and another by a group of 67 Catholic theologians and ethicists.

Rulings in the two cases are expected to be handed down in June.

The court is likely to hear arguments in the fall in suits brought by nonprofit faith-based employers who believe that a narrow exemption and an accommodation offered religious employers by the government for the health care law are not broad enough. There are currently 93 lawsuits challenging the mandate.

The mandate does not include a conscience clause for employers who object to such coverage on moral grounds.

There is an exemption for some religious employers that fit certain criteria. For those religious employers who are not exempt, the so-called accommodation allows them to use a third party to pay for coverage they find objectionable, but Catholic and other faith-based entities that have filed the lawsuits say the third-party arrangement does not solve their objection to being involved in providing coverage they reject for moral reasons.

The required coverage includes preventative services such as mammograms, prenatal care and cervical cancer screenings, but only the contraceptive coverage has prompted the objections.

 

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Backgrounder: Two types of HHS mandate cases are at different points in legal process

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Catholic News Service

WASHINGTON — The Supreme Court is involved in two types of issues related to claims by employers who say they should not have to provide coverage of contraceptives in their workers’ health insurance plans because this violates the employers’ faith-based moral objections.

The headquarters of the U.S. Department of Health and Human Services is seen in Washington in this file photo. CNS

Both matters revolve around requirements in the Affordable Care Act that employer-provided health insurance include coverage of contraceptives, sterilizations and other types of birth control opponents say can induce an abortion.

The law, the main provisions of which took effect Jan. 1, includes rules that allow an exemption for some religious employers that fit certain criteria. Other nonprofit, faith-based institutions that are not exempted because they don’t fit the criteria have the option of signing a waiver, which the government calls an accommodation and directs a third party to provide to their employees the contraceptive coverage they find objectionable.

Some religious institutions, including the Catholic Health Association, have accepted the exemption and waiver options. CHA in July said it would help its member organizations comply with the accommodation. Others say the provisions don’t adequately protect religious rights and have sued the federal government.

The Becket Fund, a religious liberty law firm that represents many of the plaintiffs who have sued the federal government over the mandate, counts 91 lawsuits representing about 300 plaintiffs. Half are by for-profit employers, half by nonprofits.

Because the final rules for how the health care law applies to nonprofits weren’t released until June 28, legal challenges by nonprofit entities are many months behind the lawsuits filed on behalf of for-profit employers, who are not covered by any of the exemption options.

While many of the nonprofit suits — such as that by the Little Sisters of the Poor — have been through the federal courts for an initial ruling about whether the employers must comply with the mandate while the legal cases proceed, none has yet worked its way through lower courts to the point of appeal to the Supreme Court on the merits of the challenges.

Thus, in the first cases to reach the Supreme Court on the nuts-and-bolts of the legal challenges, on March 25 the court will consider the claims of two for-profit employers who say they should not be required to provide coverage to which the owners have moral objections.

Those cases, brought by Hobby Lobby Stores, and Conestoga Wood Specialties, challenge the contraceptive insurance mandate on behalf of owners who say it infringes on their religious rights to have to provide coverage that they believe is immoral. Both companies are privately held and family owned.

At issue in both cases will be First Amendment arguments that the contraceptive mandate violates the owners’ Free Exercise rights as well as their rights under a 1993 law, the Religious Freedom Restoration Act.

In Sebelius v. Hobby Lobby Stores, the Green family won a ruling by the 10th U.S. Circuit Court of Appeals that said their chain of more than 500 arts-and-crafts stores and Mardel, a chain of 35 Christian bookstores, could proceed with seeking an injunction protecting the companies from meeting parts of the contraceptive mandate issued by the Department of Health and Human Services as part of the health care law.

The Christian family that owns Hobby Lobby does not object to covering contraceptives for its employees. It already does that; they object to being required to cover birth control drugs that are considered abortifacients.

The second case, Conestoga Wood Specialties v. Sebelius, is an appeal by the Hahn family, the Mennonite owners, of a 3rd U.S. Circuit Court of Appeals ruling that they had to comply with the contraceptive coverage requirement. The circuit court ruled that as a for-profit, secular corporation, Conestoga Wood and its owners are not protected by the Free Exercise clause of the First Amendment.

As of Jan. 28, dozens of entities with an interest in the outcome of the cases had filed “amicus,” or friend-of-the-court, briefs raising various legal arguments. Those included the U.S. Conference of Catholic Bishops and another by a group of 67 Catholic theologians and ethicists.

The legal claims being made by the Little Sisters of the Poor echo many of the First Amendment legal arguments raised in the Hobby Lobby and Conestoga Wood cases.

But they were not what the Supreme Court court addressed in its Jan. 24 action to continue an injunction. That three-sentence order issued by the court as a whole continued an emergency injunction granted Dec. 31 by Justice Sonia Sotomayor.

The order addressed only the issue of whether the Little Sisters must submit required paperwork to qualify for an exemption from the contraceptive mandate. Their co-plaintiffs are Christian Brothers Services and Christian Brothers Benefits Trust, which manages the religious order’s benefits.

The Supreme Court’s order said the federal government is enjoined from enforcing the provisions being challenged, pending final resolution of the case in the 10th U.S. Circuit Court of Appeals. The sisters’ challenge to the mandate itself now goes back to the 10th Circuit.

The Supreme Court’s action means that until the 10th Circuit rules, the employers in the case need only inform HHS in writing that they are “nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.”

The Supreme Court’s order said specifically it was not addressing the merits of the case itself, only the injunction issue.

The Becket Fund, which represents the Little Sisters of the Poor in their lawsuit and plaintiffs in other suits, describes the Little Sisters case as a class action representing more than 400 Catholic institutions whose benefits are managed by the Christian Brothers. A class action must, however, be affirmed as such by a court.

Legal analyst Lyle Denniston, writing for the SCOTUSblog, a blog on the Supreme Court, said Jan. 27 that lower courts have not approved the lawsuit as a class action, and that was not addressed by the Supreme Court. He noted that the Justice Department, which is defending the federal government, has said it would not object if other employers sought similar injunctive relief.

 

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U.S. Supreme Court to hear two challenges to the Affordable Care Act – Updated

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WASHINGTON — The U.S. Supreme Court agreed Nov. 26 to take up two cases that challenge provisions of the Affordable Care Act requiring employers to provide contraceptive coverage on behalf of for-profit companies whose owners object to the mandate for religious reasons.

On Dec. 2, the court announced it had declined to hear the appeal of Liberty University of the 4th U.S. Circuit Court of Appeals ruling that the Christian university must adhere to the health care law’s employer mandate. When the Supreme Court ruled on the constitutionality of parts of the health care law in 2012, it didn’t address the employer mandate to provide coverage.

Probably in March, the court will take up the cases of Hobby Lobby, an Oklahoma-based, family-run arts-and-crafts chain, and Conestoga Wood Specialties, a Pennsylvania family-run company that makes cabinets.

The cases will be combined for the arguments. A decision is likely by late June.

Archbishop William E. Lori of Baltimore, chairman of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, was pleased with the court’s decision to take up the cases.

In a Nov. 26 statement he said the review “highlights the importance of this conflict between the federal government and people seeking to practice their faith in daily life.”

“We pray that the Supreme Court will find that the Constitution and the Religious Freedom Restoration Act protect everyone’s right to religious freedom. We are encouraged by the advances in the lower federal courts so far in cases involving family-owned companies as well as nonprofit religious organizations.”

In Sebelius v. Hobby Lobby Stores, the Green family won a ruling by the 10th U.S. Circuit Court of Appeals that said their Hobby Lobby chain of more than 500 stores and Mardel, a chain of 35 Christian bookstores, could proceed with seeking an injunction protecting the companies from meeting parts of the contraceptive mandate issued by the Department of Health and Human Services as part of the health care law.

Both the Justice Department and the Greens asked the Supreme Court to review the case.

The government requires most employers’ health plans to include free coverage of contraceptives, sterilizations and some abortion-inducing drugs.

The Greens say they object to that part of the Affordable Care Act’s employer mandate requiring they provide emergency contraceptive coverage, such as the morning-after pill or Plan B, saying that violates their religious freedom. The family has no moral objection to covering “preventive contraceptives” and will continue to cover those for employees, they have said.

The court agreeing to hear their case is “a major step for the Greens and their family businesses in an important fight for Americans’ religious liberty,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby.

“We are hopeful that the Supreme Court will clarify once and for all that religious freedom in our country should be protected for family business owners like the Greens,” he said in a statement.

In a statement on the Hobby Lobby case issued by the press secretary’s office, the White House said it doesn’t comment on specifics of any case pending before the high court, but “as a general matter” it said the HHS mandate is designed to “ensure that health care decisions are made between a woman and her doctor.”

President Barack Obama “believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women, it said. The administration said it has already taken steps to “to ensure no church or similar religious institution” is forced to provide contraception coverage and allow women, not “corporate CEOS,” to make their own health decisions.

The second case, Conestoga Wood Specialties v. Sebelius, is an appeal by the Hahn family, the Mennonite owners, of a 3rd U.S. Circuit Court of Appeals ruling that they had to comply with the contraceptive coverage requirement. The circuit court ruled that as a for-profit, secular corporation, Conestoga Wood and its owners are not protected by the Free Exercise clause of the First Amendment.

In its petition for the Supreme Court to review its case, Conestoga Wood argued that the 3rd Circuit’s decision conflicts with rulings by other circuit courts that recognized religious rights of for-profit corporations.

The 1993 law, known as RFRA, says that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. The legal question raised in the case is whether RFRA protects a for-profit company from having to provide a benefit to which employees are entitled under federal law but to which the owners have religious objections.

The companies also raised the Free Exercise clause as a defense in arguing the mandate infringes on the employers’ right to be free from government interference with their religious beliefs. The argument cites the Supreme Court’s ruling in Citizens United that found a corporate free speech right to participate in the political process through campaign contributions.

The HHS mandate includes an exemption for some religious employers that fit its criteria and has an accommodation for others allowing some employers to use a third-party to provide the contraceptive coverage they find objectionable, but Catholic entities that have brought the lawsuits say the accommodation still does not solve their problem over being involved in providing coverage they reject for moral reasons.

The mandate does not include a conscience clause for employers who object to such coverage on moral grounds.

Neither of the Supreme Court’s orders lists from the Nov. 26 conference made reference to a fourth employer challenge of the health care law, Autocam v. Sebelius. The case was on the list for review at the same conference as the Hobby Lobby, Conestoga Wood and Liberty University appeals.

Cases the court accepted were announced Nov. 26. Those it denied were announced Dec. 2. Sometimes the court will hold a petition until other cases that deal with the same legal issues are decided.

 

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