Claiming that the HHS contraception mandate violates their rights under three U.S. constitutional amendments and a 1993 federal law protecting religious liberty, a law firm representing Michael and Stanley Brey, brothers and co-owners of the Monticello-based company named SMA, LLC, filed the third Minnesota lawsuit against the statute earlier this month, bringing the number of cases to more than 60 nationally.

The case, brought by a for-profit agricultural/industrial construction company, goes to U.S. District Court as local interest in the issue continues to increase and some non-profit organizations could soon be required to pay for abortifacients, elective sterilization and contraceptives as part of their employee group health plans. The HHS mandate, part of the Patient Protection and Affordable Care Act, is enforced by the U.S. Department of Health and Human Services.

Problems with exemption

As the U.S. bishops convene the second Fortnight for Freedom on June 21, calling for prayer and action to address challenges to religious liberty, some say the Obama administration’s exemption from the mandate for churches and church-related organizations but not for-profit businesses is not only unconstitutional but divides conscience objectors on religious and secular business lines.

“The exemption was butchered,” said Erick Kaardal of Minneapolis-based Mohrman & Kaardal, P.A., which is representing the Breys. “So many of these claims fall out of the fact that they didn’t do the accommodation well.”

The mandate violates the establishment clause of the First Amendment because it treats conscience objectors differently, he said. It also infringes on their rights in the Fifth and Fourteenth Amendments because it interferes excessively with the operation of businesses, he said.

“We feel that as religious lay owners of for-profit businesses that the religious employer exemption is discriminatory in the sense that religious objectors are now treated differently,” Kaardal said. “Our religious objection is no different than the religious objection of a board member of a non-profit. It seems like the government is trying to separate the religious objectors and by giving the exemption to one type of religious objector and not to another, they separate the shepherd from the flock.”

The religious liberty of the Breys, who are Catholic, is protected under the 1993 Religious Freedom Restoration Act, which stipulates that courts can’t judge the adequacy of someone’s beliefs and instructs them to defer to believers’ assessment of what their religion requires, he said.

Because plaintiffs in both of the previous Minnesota cases have received temporary relief from the mandate in the form of preliminary injunctions, the Breys also have a good chance of receiving temporary and eventually permanent relief if they can show their objection is a sincere exercise of the Catholic faith, he said.

The brothers object to the mandate, but feel compelled to offer their 35 employees insurance even though they’re not required to offer it because of the business size. Under the mandate, they will have to provide the coverage if they renew their health plan on Dec. 1. All group health plans are required to include the contraception coverage.

Looking ahead

RFRA may provide relief from the mandate on a case-by-case basis, but it will take a greater investment of time and resources to bring down the entire statute, Kaardal said. Because only 60 cases are challenging the mandate, the government doesn’t appear to be very concerned about a substantial challenge to the statute, he said.

One of the largest employers seeking relief from the mandate, Oklahoma-based Hobby Lobby Stores, was denied an injunction in court last year and, while it still seeks relief, the company faces potential fines of $1.3 million per day for noncompliance.

The fact that cases like this one and the Breys’ would come from the business sector is surprising, Kaardal said.

“They did an extraordinary thing,” he said. “We’re seeing religious values acted upon.”