Oba­macare be­comes test of faith for em­ployer

The Washington Times Weekly - - National - BY TOM HOW­ELL JR.

Em­ploy­ees at a western Michi­gan man­u­fac­tur­ing com­pany might not all agree with the Catholic own­ers’ re­li­gious stance on birth con­trol, but that doesn’t mean any of them want their gen­er­ous health ben­e­fits to change.

That’s how John Kennedy, who founded Au­to­cam Corp. 25 years ago, out­lined a prac­ti­cal slice of his ar­gu­ment against a new man­date that re­quires large em­ploy­ers to in­sure birth con­trol as part of their com­pany health plans.

Mr. Kennedy said his Catholic fam­ily ac­cepts that life be­gins at con­cep­tion, and thus the church’s teach­ing that in­ter­fer­ing with that is an “in­trin­sic evil.”

“We never have cov­ered th­ese things,” Mr. Kennedy said in an in­ter­view along­side his wife, Nancy, and their 23-yearold daugh­ter, Mar­garet, in down­town Wash­ing­ton.

They vis­ited the na­tion’s cap­i­tal last week to lay the ground­work for a leg­isla­tive rem­edy if they do not get relief from the courts from the man­date, a rule the Obama ad­min­is­tra­tion im­posed among the sweep­ing health care re­forms in the Af­ford­able Care Act.

Dozens of re­li­giously de­vout busi­ness own­ers have sued over the man­date, and fed­eral ap­peals courts have split on the is­sue, mak­ing it ripe for re­view by the Supreme Court this term. Op­po­nents par­tic­u­larly ob­ject to in­sur­ing morningafter pills like Plan B and Ella, which they equate with abor­tion.

The Kennedys are com­ply­ing with the man­date for now, but say they face an im­pos­si­ble set of choices if it is not rolled back. With­out relief, they would have to ei­ther vi­o­late their con­science, drop their em­ploy­ees’ health cov­er­age or flout the man­date and face mil­lions of dol­lars in fines that would crip­ple the busi­ness.

“I don’t know what I’m go­ing to do,” Mr. Kennedy said. “There is no right an­swer.”

Fea­ture of Oba­macare

The con­tra­cep­tion man­date has been a con­stant sub­plot to the Oba­macare drama that has played out on Capi­tol Hill since 2010, when Demo­cratic ma­jori­ties mus­cled the over­haul through Congress.

Houses of wor­ship are ex­empt from the man­date, while re­li­gious non­prof­its have ob­tained an “ac­com­mo­da­tion” that divorces them from man­ag­ing or pay­ing for birth-con­trol cov­er­age — al­though many say that is a mere ac­count­ing trick. As it stands, for-profit en­ti­ties must fully com­ply with the man­date, re­gard­less of the re­li­gious views of their own­ers.

Con­ser­va­tive law­mak­ers and plain­tiffs across the coun­try say the rule is a bla­tant in­fringe­ment on the First Amend­ment right of free ex­er­cise of re­li­gion and vi­o­lates the 1993 Re­li­gious Free­dom Restora­tion Act.

But the Obama ad­min­is­tra­tion has said con­tra­cep­tion use is wide­spread and of­ten un­af­ford­able for women. Sup­port­ers of the rule say busi­ness own­ers can­not im­pose their per­sonal be­liefs on a di­verse ar­ray of em­ploy­ees at for-profit com­pa­nies, and that health insurance is not much dif­fer­ent than other forms of com­pen­sa­tion that al­low peo­ple to pur­chase what­ever they want.

“We hope that the court will up­hold the rule, and we will be weigh­ing in with a brief as we have done in over 30 of th­ese cases,” said Brigitte Amiri, a se­nior staff at­tor­ney at the Amer­i­can Civil Lib­er­ties Union.

Fast-track to the high court

The bat­tle lines are drawn, but an­a­lysts of all stripes agree the case is on the fast­track for the high­est court in the land.

“I think it’s a fore­gone con­clu­sion the Supreme Court will take this up,” said Holly Lynch, a health law pol­icy and bioethics spe­cial­ist at Har­vard Law School.

The Obama ad­min­is­tra­tion has asked the Supreme Court to re­view the 10th U.S. Cir­cuit Court of Ap­peals’ de­ci­sion to grant relief to Hobby Lobby — an Ok­la­homa-based crafts-store fran­chise — from the man­date un­til its law­suit can be de­cided on its mer­its.

Two other fed­eral ap­peals courts, the 3rd and 6th Cir­cuits, have sided with the Obama ad­min­is­tra­tion’s stance.

“The com­bi­na­tion of a cir­cuit split and a pe­ti­tion from the United States, that’s — yeah, pretty good,” said Kevin C. Walsh, a pro­fes­sor at the Univer­sity of Rich­mond School of Law who thinks a high-court re­view is in­evitable.

Mr. Walsh, who is rep­re­sent­ing a non­profit that is fight­ing the man­date, said the jus­tices will look for the case that of­fers the best ve­hi­cle for re­solv­ing the topic’s le­gal ques­tions. The Hobby Lobby case might be the one to watch, since it at­tracted nu­mer­ous friend-of-the-court briefs and was heard by all the cir­cuit’s judges, not just a three-judge panel.

“If you were plac­ing odds, that would be the most likely one,” Mr. Walsh said.

To the Kennedy fam­ily, the man­date is not only an in­tru­sion on their re­li­gious free­doms, but an un­nec­es­sary one.

Armed with an iPad, Mr. Kennedy showed off a side-by-side com­par­i­son of the Au­to­cam health plan for his 700 em­ploy­ees ver­sus the na­tional av­er­age. His em­ploy­ees make out rather well, the chart shows, and the fam­ily cov­ers 100 per­cent of their em­ploy­ees’ costs for pre­ven­ta­tive care — a drive to en­sure the well-be­ing of his em­ploy­ees that hap­pens to align with a key tenet of Oba­macare.

The com­pany also doles out $1,500 per year to each em­ployee’s Health Sav­ings Ac­count, a pot of money that could let em­ploy­ees’ ob­tain con­tra­cep­tion if they want it.

“I don’t even know how they use it,” Mr. Kennedy said.

Same as wages?

An­a­lysts say such com­pen­sa­tion, in its vary­ing forms, presents a key le­gal ques­tion for the courts. Is pay­ing for con­tra­cep­tives through a health plan much dif­fer­ent, they ask, than pay­ing their em­ploy­ees a salary or of­fer­ing other forms of com­pen­sa­tion that can be used to ac­quire birth con­trol?

“It strikes me as dif­fi­cult to say, ‘I have an ob­jec­tion to one but not the other,’” said Ms. Lynch of Har­vard.

Mr. Kennedy said his fam­ily is not re­spon­si­ble for how Au­to­cam’s em­ploy­ees spend their money, in­clud­ing the HSA funds, but the man­date “changes the sit­u­a­tion.”

Sud­denly, he said, they are re­quired to play a di­rect role in pro­vid­ing con­tra­cep­tive drugs, de­vices or pro­ce­dures to their em­ploy­ees.

“This is the line our faith re­quires us to re­spect, and that is what we’re try­ing to do here,” he said. “It’s a ter­ri­ble predica­ment to be forced into by your coun­try.”

The ACLU’s Ms. Amiri said such a stance pro­vides a “false choice.”

“Pro­vid­ing a com­pre­hen­sive health plan to his em­ploy­ees doesn’t bur­den his re­li­gion be­liefs any more than pay­ing salaries, which em­ploy­ees may use to ob­tain care or ser­vices that may be con­trary to the owner’s re­li­gious be­liefs,” she said.

Rep. Bill Huizenga, a Michi­gan Repub­li­can who said Mr. Kennedy is a re­spected busi­ness­man in his dis­trict, said the cal­cu­lus would be dif­fer­ent if pub­licly traded cor­po­ra­tions were un­der the mi­cro­scope in this de­bate.

But self-in­sured Au­to­cam is a fam­i­lyrun busi­ness in the strictest sense. Its share­hold­ers con­sist of Mr. Kennedy and his im­me­di­ate fam­ily, with daugh­ter Mar­garet and her three brothers — ages 21, 26 and 28 — each own­ing a stake in the com­pany.

Au­to­cam em­ploy­ees seem to like their plan, and Amer­i­can busi­nesses should be able to agree on com­pen­sa­tion pack­ages with­out gov­ern­men­tal in­ter­fer­ence, ac­cord­ing to Mr. Huizenga.

“This isn’t France … It’s called the free mar­ket,” he said, adding, “John’s been swim­ming up­stream on this.”

AS­SO­CI­ATED PRESS

John Kennedy, who founded Au­to­cam Corp. 25 years ago, says Oba­macare’s man­a­date on cov­er­age for birth con­trol presents him and his fam­ily with an im­pos­si­ble set of choices. With­out relief, they would have to ei­ther vi­o­late their con­science, drop their em­ploy­ees’ health cov­er­age or flout the man­date and face mil­lions of dol­lars in fines that would crip­ple the busi­ness.

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