The 18 For-Profit Companies Fighting to Eliminate the Birth Control Benefit
Eighteen for-profit companies have filed lawsuits to avoid complying with the the birth control benefit in the Affordable Care Act (ACA), which requires that all insurance policies cover birth control without a co-pay as part of preventive care. Often misleadingly characterized as mandating “free birth control,” the ACA, otherwise known as Obamacare, requires that all insurance policies cover all forms of basic preventive care without a co-pay, including well-woman, well-baby, and well-child visits, as well as other basic prevention care for men and women. This coverage is intended to save costs and promote public health.
Basic preventive reproductive and sexual health-care services, including contraception, are therefore also covered without a co-pay; as part of the mandate, all insurance plans must provide coverage without a co-pay for all methods of contraception approved by the Food and Drug Administration (FDA). Employees earn their salaries and their benefits, and many pay for all or a portion of their health-care premiums out of their salaries. As such, none of this coverage is “free,” but is rather covered by the policies they are earning or for which they are paying.
Nonetheless, the 18 companies that have sued to overturn the birth control benefit are doing so based on several misleading claims. One is that providing insurance policies that cover birth control violates the “religious freedom” of the companies’ owners. It is difficult to see how a critical public health intervention accessed through an employee’s health plan violates the religious freedom of the owner of the company. In fact, the reverse seems to be true; not allowing an employee to access coverage he or she has earned would appear to violate the employee’s freedoms, first and foremost.
The owners of these companies share the belief that a woman is pregnant as soon as there is a fertilized egg (the medical definition of pregnancy is successful implantation of an embryo in the uterine wall) and that a fertilized egg has the same rights as a born person. They also claim that the ACA forces them to cover “abortifacients,” with most pointing to emergency contraception methods such as Plan B to make their case. Emergency contraception, however, is just that: Contraception. It prevents ovulation, and therefore fertilization, and does not work after an egg has been fertilized.
These lawsuits, now in various phases of litigation, are posing a critical challenge not only to the Affordable Care Act, but ultimately to the ability of all people to make the most profoundly personal decisions about whether, when, and under what circumstances to have a child and build a family.
Below is a list of these companies and the status of their cases. And Planned Parenthood Federation of America has launched a campaign enabling you to tell these companies what you think.
1. Tyndale House
Summary: An Illinois publishing company focusing on Christian books (and Bibles). The founder’s argument is that he shouldn’t have to provide his 260 employees with contraceptives he equates with abortion.
Status: U.S. District Judge Reggie Walton of the district court granted a preliminary injunction.
President and Chief Executive: Mark D. Taylor
Taylor sees ACA birth control mandate as a test of God’s law vs. Man’s law. “I’ve always thought—in a theoretical way—that I might someday face a situation where the government was asking or telling me to do something that was counter to God’s law as I understood it. If such a situation arose, I hoped I would have the backbone to stand tall and disobey the government mandate. Well, that day seems to have come.” (World Magazine; October 2012)
Taylor equates Plan B and intrauterine devices (IUDs) with abortions because they prevent implantation. “As a Protestant, I don’t have a moral objection to contraceptives per se. But [the U.S. Department of Health and Human Services (HHS)] defines contraception to include abortifacients such as Plan B (the morning-after pill), Ella (the week-after pill), and intrauterine devices. HHS Secretary Kathleen Sebelius admits that one purpose of these drugs and devices is to keep the fertilized egg from “implantation” onto the wall of the uterus. In other words, their purpose is to cause an early abortion of a human being that is made in the image of God.” (World Magazine; October 2012)
Taylor feels he has biblical confirmation that his lawsuit is protecting the word of God. “The day after we filed the lawsuit, the daily reading from The One Year Bible included the first chapter of Jeremiah and these verses:
The LORD gave me this message: ‘I knew you before I formed you in your mother’s womb. Before you were born I set you apart and appointed you as my prophet to the nations’ (Jeremiah 1:4-5, NLT).
How’s that for biblical confirmation that the unborn baby is important in the eyes of God! After reading that passage, I felt confirmed in my responsibility to stand up against a government that is trampling on my religious liberty. May God be merciful to all of us.” (World Magazine; October 2012)
2. Freshway Foods and Freshway Logistics
Summary: The produce processing and packing companies are Ohio-based but serve 23 states and employ about 400 people. “The government is requiring them to enter into a contract and to pay for things that they find morally objectionable, and they just want to be able to continue what they’ve been doing,” one of their lawyers argued. They’ve excluded contraceptives, sterilization, and abortion-inducing drugs from their company health insurance for the past decade. Co-founders are two Catholic brothers.
Status: Complaint filed. In response to plaintiffs’ contention that their case is sufficiently related to the Tyndale case, the district court ordered plaintiffs to demonstrate as much by February 8.
Co-founder and CEO: Frank Gilardi
Co-founder and President: Phil Gilardi
“Freshway Foods trucks bear signs stating, ‘It’s not a choice, it’s a child,’ as a way to promote the owners’ anti-abortion views to the public, according to [a] legal complaint.” (Journal News; January 2013)
Freshway Foods has deliberately excluded contraceptives, sterilization, and abortion-inducing drugs from its company health coverage for 10 years. “’Our clients believe that having to pay for contraceptives, abortion-inducing drugs, and sterilization will cause them to violate their religious beliefs and moral values,’ said Edward White, Senior Counsel of the [American Center for Law and Justice (ACLJ)]. ‘They have specifically excluded such things from their company’s health insurance plan for the past ten years. The HHS mandate, however, will require them to pay for such drugs and services on April 1st. They have filed this lawsuit seeking an injunction against the mandate so they can continue to run their business in accordance with their religious beliefs and moral values.’” (ACLJ; January 2013)
3. Conestoga Wood Specialties Corporation
Summary: A Pennsylvania-based wood cabinet and specialty products manufacturer run by Mennonites who think some birth-control products such as Plan B are “sinful and immoral” and “an intrinsic evil and a sin against God.” The company employs 950 people.
Status: The court dismissed a motion for preliminary injunction, but the plaintiffs appealed to the Third Circuit last month.
Owners: Norman Hahn, Elizabeth Hahn, Norman Lamar Hahn, Anthony N. Hahn, and Kevin Hahn
The owners argue they are acting in accordance with their faith by not covering contraception, and being forced to cover it is “un-American.” “‘People of faith should not be punished for making decisions according to the deepest convictions of that faith,’ said Attorney Charles W. Proctor, III, who is representing the Hahn family. ‘When government grows so invasive to force persons to violate their conscience, government is out of control and clearly outside the bounds of our Constitutions’ Bill of Rights .… The Health and Human Services abortion pill mandate would unconstitutionally force the Hahn family, owners and operators of Conestoga Wood Specialties, to do something offensive to their conscience—under threat of onerously large fines and penalties,’ he continued. ‘This is un-American.’” (Christian News; December 2012)
They argue that Plan B is equivalent to an abortion, and call it “intrinsic evil.” “‘The Mennonite Church teaches that taking of life, which includes anything that terminates a fertilized embryo, is intrinsic evil, and a sin against God to which they are held accountable,’ said the lawsuit brought by Norman Hahn, Norman Lemar Hahn and Anthony H. Hahn. Both abortion and any abortifacient contraception that may cause an abortion are ‘equally objectionable,’ they said.” (Washington Times; December 2012)
They have said mandating that they offer contraception is “sinful and immoral.” “Conestoga Wood in December had sued the U.S. Secretaries of Labor, Health and Human Services and the Treasury, alleging it would be ‘sinful and immoral’ to make the company comply with the law by paying for or supporting certain forms of contraception.” (Lancaster Online; January 2013)
4. Hercules Industries, Inc.
Summary: A Colorado corporation that manufactures heating, ventilation, and air conditioning products and employs 303 staffers.
Status: The district court granted an injunction. The government has appealed to the Tenth Circuit.
Founders and Owners: James Newland, Paul Newland, William Newland, and Andrew Newland
Number of children: The Newlands are five sibling-owners of Hercules Industries. The number of children they each have is unknown.
Hercules is a for-profit, secular employer, but is incorporating Catholicism into its “corporate culture.” “Although Hercules is a for-profit, secular employer, the Newlands [founders] adhere to the Catholic denomination of the Christian faith. According to the Newlands, ‘they seek to run Hercules in a manner that reflects their sincerely held religious beliefs.’ Thus, for the past year and a half the Newlands have implemented within Hercules a program designed to build their corporate culture based on Catholic principles.” (Court files; July 2012)
Hercules Industries’ previous health insurance plan intentionally left out contraceptive coverage because of the Newlands’ Catholic beliefs. “According to Plaintiffs, Hercules maintains a self-insured group plan for its employees ‘[a]s part of fulfilling their organizational mission and Catholic beliefs and commitments.’ Significantly, because the Catholic Church condemns the use of contraception, Hercules self-insured plan does not cover abortifacent drugs, contraception, or sterilization.” (Court files; July 2012)
Ironically, Hercules Industries was going to be awarded a Good Citizenship Award for a number of features, including its health-care coverage. The award was taken away when the company won its court injunction. “Hercules Industries, a heating, ventilation, and air-conditioning manufacturer that employs 300 workers and has been in business in the Mile-High City for 50 years, was to be honored with a ‘Good Citizenship Award.’ The laurel was in recognition of contributions to the community, including the historic restoration of company headquarters and, ironically, its ‘generous employee health care coverage.’” (Fox News; August 2012)
5. Hobby Lobby
Summary: A national craft supply chain based in Oklahoma City that employs over 13,000 people across the country.
Status: The district court denied the preliminary injunction, but Hobby Lobby appealed to the Tenth Circuit, which denied separate injunctive relief but has not yet decided whether to grant the preliminary injunction. The plaintiffs appealed to the Supreme Court for the separate relief, but the Supreme Court refused to hear the case.
Founder: David Green
Green argues that his religious beliefs support his thousands of employees and their families. “’Our family is now being forced to choose … between following the laws of the land that we love or maintaining the religious beliefs that have made our business successful and supported our family and thousands of our employees and their families,’ Green said … during a conference call. ‘We simply cannot abandon our religious beliefs to comply with this mandate.’” (The Oklahoman; September 2012)
Green says the foundation of his business is “honoring the Lord in a manner consistent with biblical principles.” “‘The foundation of our business has been, and will continue to be strong values, and honoring the Lord in a manner consistent with biblical principles,’ a statement on the Hobby Lobby website reads, adding that one outgrowth of that is the store is closed on Sundays to give its employees a day of rest.” (CNN; January 2013)
6. Sioux Chief Manufacturing
Summary: A Missouri plumbing products company that employs 370 people.
Status: Complaint filed.
CEO: Joe Ismert
The Ismert family alleges that the contraception mandate interferes with their desire to embody the moral teachings of the Catholic Church in their business. “‘The Mandate illegally and unconstitutionally coerces Plaintiffs to violate their sincerely held Catholic beliefs under threat of heavy fines and penalties,’ reads the suit in part. ‘The Mandate also forces Plaintiffs to fund government-dictated speech that is directly at odds with the religious ethics derived from their deeply held religious beliefs and the moral teachings of the Catholic Church that they strive to embody in their business.’” (Christian Post; January 2013)
The Ismerts’ lawyer has called the contraception mandate “unprecedented, unnecessary, and unconstitutional.” “‘Americans should be free to honor God and live according to their consciences wherever they are,’ said [lawyer Jonathan R.] Whitehead. ‘They have the God-given freedom to live and transact business according to their faith, and the First Amendment has always protected that. Forcing Americans to ignore their faith just to earn a living is unprecedented, unnecessary, and unconstitutional.’” (Christian Post; January 2013)
7. Domino’s Farms
Summary: The Michigan-based property management company owned by Tom Monaghan, the same man who founded Domino’s Pizza. Forty-five full-time and 44 part-time employees work there.
Status: The district court granted a temporary restraining order. Court heard motion preliminary injunction on January 31.
Owner: Tom Monaghan
Monaghan’s case refers to contraception as “a grave sin” and likens Plan B to abortion. “The lawsuit, filed in federal court, claims that the new law ‘attacks and desecrates a foremost tenet of the Catholic Church,’ which considers contraception ‘a grave sin.’ It adds that the mandate compels insurance issuers to cover the morning-after pill, ‘despite their known abortifacient mechanisms of action.’” (AOL; December 2012)
Before the ACA rule, Monaghan specifically crafted an insurance plan that did not include contraceptives or sterilization. “Before Obamacare, however, Monaghan had been able to ‘engineer’ an insurance policy through Blue Cross and Blue Shield that had exemptions for contraceptives and sterilization, according to [Thomas More Law Center President and Chief Counsel Richard] Thompson.” (AOL; December 2012)
Monaghan once countered the idea that contraceptive coverage extends equal opportunity to women in the workforce by citing that his lead counsel, Erin Mersino, won their case’s first victory while more than seven months pregnant. “‘The federal government says we need this law so that women have an equal opportunity in the workforce, so they can choose if and when they have children,’ said Thompson. But Mersino managed that legal victory, he points out, while seven-and-a-half months pregnant.” (AOL; December 2012)
8. Autocam Corporation
Summary: A West-Michigan-based company that makes parts for transportation and medical equipment and employs 680 people across the United States. CEO John Kennedy and family are Catholic.
Status: The district court denied preliminary injunction. Plaintiffs appealed to the Sixth Circuit, which denied injunction and motion to reconsider.
CEO: John Kennedy
Kennedy made this video in association with CatholicVote.org to explain his opposition to the ACA mandate. In it, he likens Plan B and IUDs to abortion. “The Affordable Care Act forces me to pay for things that violate my deeply held beliefs, such as abortion-inducing drugs, and makes it difficult for us to offer these great benefits to our associates. I can’t in good conscience choose between violating my beliefs and meeting my associates’ needs,” he says in the video.
Again, Kennedy has likened Plan B and IUDs to abortion. “‘Why is the Obama administration prioritizing life- ending drugs over lifesaving drugs?’ said Kennedy, who filed the lawsuit with the support of the Catholic Vote Legal Defense Fund and the Thomas More Society of Chicago.” (MLive.com; October 2012)
9. O’Brien Industrial Holdings
Summary: A Missouri company that processes ceramic materials and employs 87 people.
Status: After the district court granted motion to dismiss, the plaintiffs appealed to the Eighth Circuit. Last November, the Eighth Circuit issued a stay pending the appeal, over the dissent of one judge.
Owner: Frank R. O’Brien
The company website says, “Our conduct is guided by the Golden Rule and the Ten Commandments. We will not discriminate based on anyone’s personal belief system.” “Mission: Our mission is to make our labor a pleasing offering to the Lord while enriching our families and society …. Integrity: Our conduct is guided by the Golden Rule and the Ten Commandments. We will not discriminate based on anyone’s personal belief system …. People: We are an organization that will attract and keep outstanding personnel. Mean spirited behavior will not be tolerated.” (O’Brien Industrial Holdings)
O’Brien’s lawyer has argued that businesses should be governed by moral values, not government. “‘We have argued from the beginning that employers like Frank O’Brien must be able to operate their business in a manner consistent with their moral values, not the values of the government,’” said attorney Francis Manion. (Associated Press; November 2012)
10. American Pulverizer Company
Summary: Owned by founders Paul and Henry Griesedieck, who have controlling interest in four Missouri-based companies involved in the business of wholesale scrap metal recycling. Their companies employ about 150 people.
Status: The district court granted a preliminary injunction in part because of the O’Brien stay precedent.
Founders: Paul and Henry Griesedieck
The Griesediecks have argued that “it would be sinful for us to pay for services that have a significant risk of causing the death of embryonic lives.” “In their lawsuit, the Griesediecks contend that compliance with the Obamacare mandate would force them to violate their religious and moral beliefs. In their lawsuit, the Griesediecks state that ‘it would be sinful for us to pay for services that have a significant risk of causing the death of embryonic lives.’” (Life News; January 2013)
The Griesedieck brothers have likened Plan B to abortion. “The owners, who are Evangelical Christians, contend that the HHS mandate requiring coverage for abortion-inducing drugs—including the ‘morning-after pill’—violates their religious beliefs.” (ACLJ; October 2012)
11. Sharpe Holdings, Inc.
Summary: A Missouri corporation that is involved in the farming, dairy, creamery, and cheese-making industries and employs at least 100 people.
Status: The district court granted a temporary restraining order that’s in effect until the court rules on further injunctive relief.
Founder and CEO: Charles N. Sharpe
Sharpe has likened Plan B and IUDs to abortion. “Rather, the focus of their claims for injunctive relief is the ability of these devices to prevent a fertilized egg from implanting in the wall of the uterus, thereby leading to the ejection of the fertilized egg from the woman’s body, in other words, the abortion of the live fetus.” (Court files; December 2012)
Sharpe believes that Plan B and IUDs are “abortion on demand.” “In accordance with their sincerely held religious beliefs and practices, the individual plaintiffs oppose the use, funding, provision, or support of abortion on demand and believe that the use of Plan B, Ella, and copper IUDs constitutes abortion on demand.” (Court files; December 2012)
12. Annex Medical, Inc.
Summary: Plaintiffs Stuart Lind and Thomas Janas are Minnesota business owners, the former of whom owns and operates Annex Medical and Sacred Heart Medical, companies that design, manufacture, and sell medical devices and employ 16 full-time and two part-time workers. Janas is an entrepreneur who has owned several dairy businesses in the past and intends to purchase another in 2013. He currently operates Habile Holdings and Venture North Properties, companies that lease commercial properties but currently have no employees.
Status: The district court denied preliminary injunction, but the plaintiffs appealed to the Eighth Circuit in January and got an injunction pending appeal, relying on the O’Brien order.
Owners: Stuart Lind and Thomas Janas
Lind and Janas believe insurance plans covering contraception are “sinful” and “immoral.” “Lind and Janas believe that paying for a group health insurance plan that complies with Defendants’ Mandate is sinful and immoral because it requires them and/or the businesses they control to pay for contraception, sterilization, abortifacient drugs and related education and counseling in violation of their sincere and deeply-held religious beliefs and the teachings of the Catholic Church.” (Court files; November 2012)
Lind and Janas believe that any action intended to prevent procreation is forbidden, whether before, during, or after intercourse. “Plaintiffs Stuart Lind and Tom Janas are devout Catholics who are steadfastly committed to biblical principles and the teachings of the Catholic Church, including the belief that life involves the creative action of God, and is therefore sacred. Lind and Janas therefore believe that any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation is an evil forbidden by God.” (Court files; November 2012)
Lind and Janas have likened Plan B to abortion. “Among the products the Mandate requires Plaintiffs’ group plans to fund are Plan B (the ‘morning after pill’) and Ella (the ‘week after pill’), drugs that are designed to destroy early human life shortly after conception.” (Court files; November 2012)
13. Korte & Luitjohan Contractors, Inc.
Summary: An Illinois-based full-service construction contractor that employs about 90 workers. The Kortes “are adherents of the Catholic faith” and “wish to conduct business in a manner that does not violate their religious faith,” according to the suit.
Status: The district court denied preliminary injunction, but the plaintiffs appealed to the Seventh Circuit, which issued an order granting the emergency motion for an injunction pending appeal over the strong dissent of one judge.
Owners: Cyril “Pete” Korte and Jane Korte
President: Cyril “Pete” Korte
Secretary: Jane Korte
The majority of the company’s employees choose to take coverage from their unions, rather than the company. “They employ about 90 full-time employees, about 70 of whom belong to and receive health insurance coverage from unions. The other 20 non-union employees receive coverage under a group plan provided by the Kortes’ company, according to their complaint.” (Madison-St. Clair Record; October 2012)
The Kortes take issue with Plan B, likening it to abortion. “Complying with the mandate would require the Kortes to violate their religious beliefs because it requires them to pay for, provide or otherwise support contraception, sterilization and abortion, the suit states, specifically noting the ‘morning-after pill.’” (Madison-St. Clair Record; October 2012)
14. Triune Health Group
Summary: A secular Illinois corporation that specializes in facilitating the re-entry of injured workers into the workforce. The health group employs 95 people.
Status: The district court granted a preliminary injunction.
Founders: Christopher and Mary Anne Yep
The Yeps have likened Plan B to abortion. “The Yeps embrace a belief which is embedded in Triune’s mission statement that each individual be ‘treated with the human dignity and respect that God intended.’ They say the Obamacare contraceptive mandate, administered by HHS and the other federal agencies named in the lawsuit, as well as the Illinois insurance contraceptive mandate, administered by Illinois’ Department of Insurance, require the Triune to provide and pay for abortion-related and contraceptive coverage for its employees and their families.” (Life News; January 2013)
The Yeps have said that the contraceptive mandate imposes a “gravely oppressive burden” on their religious beliefs. “‘The federal and state governments are coercing our clients to violate their conscientious convictions in a fashion that is completely at odds with the resounding declarations of our Founding Fathers and our modern Supreme Court jurisprudence,’ said Samuel B. Casey, Managing Director and General Counsel for the Jubilee Campaign’s Law of Life Project.” (Life News; January 2013)
Ironically, Triune Health Group was recently awarded “Best Workplace for Women” by Crain’s Chicago Business. “In Crain’s survey, Triune employees said it’s not the company’s written policies or benefits that stand out—in fact, some even expressed a desire for more than three weeks’ vacation. But workers seemed to value the flexible approach that management takes with each employee’s needs. For years, the company has posted a 95 percent employee retention rate. Most employees work out of their homes and are given flex-time, part-time and telecommuting options.” (Crain’s Chicago Business; May 2012)
15. Grote Industries
Summary: An Indiana-based privately held manufacturer of vehicle safety systems. The family-owned company has 1,448 full-time employees. The Grote family is Roman Catholic.
Status: The district court denied a preliminary injunction. Plaintiffs appealed to the Seventh Circuit, which consolidated the case with Korte (#8) and granted Grote Industries a temporary injunction pending appeal, over the strong dissent of one judge.
Owner: William “Bill” Grote
Before the ACA, Grote Industries did not offer contraception in its company health insurance plan, citing the family’s Catholic beliefs. “The [Grotes] are Catholic and claim to operate their business according to the ‘precepts of their faith.’ This includes adhering to the Catholic Church’s teachings regarding ‘the moral wrongfulness of abortifacient drugs, contraception, and sterilization’ and denying their employees contraception coverage in the company’s plan.” (RH Reality Check; February 2013)
16. Weingartz Supply Company
Summary: A secular Michigan company that sells outdoor power equipment and employees 170 people. Owner Daniel Weingartz is Roman Catholic.
Status: The district court granted a preliminary injunction for plaintiff Daniel Weingartz and Weingartz Supply Company, but not Legatus, a non-profit organization comprising more than 4,000 Catholic business owners and organizations that also got involved with the case. Defendants appealed to the Sixth Circuit in January. The government has filed a cross-appeal.
President: Daniel Weingartz
Weingartz has deliberately excluded contraceptive coverage in his company’s health-care plan. “Mr. Weingartz, a Roman Catholic, said he had devised a health plan that, in keeping with his religious beliefs, excluded coverage of contraceptives.” (New York Times; November 2012)
17. Infrastructure Alternatives, Inc.
Summary: A Michigan contractor in the fields of environmental dredging, contaminated sediment remediation, geotextile tube installation, and water treatment operations.
Status: Complaint filed.
18. Tonn and Blank Construction, LLC
Summary: An Indiana construction company. The suit hasn’t gotten any publicity.
Status: Awaiting responses to motion for preliminary injunction, motion to dismiss, and motion to consolidate with Diocese of Fort Wayne-South Bend.
See our other coverage of these cases:
The Sliding Scale of Sin: Tyndale Publishers and Contraception Without a Co-Pay
What’s Next In The Litigation Over The Obamacare Contraception Mandate?
Freshway: Legal Wrap: Personhood, Statutory Rape, and the Second-Class Legal Status of Women
Conestoga: Mennonite Business Latest To Challenge Contraception Mandate
Federal Judge In Michigan Rules Against Birth Control Benefit in Favor of Business Owner
Will the Religious Right Succeed? An Examination of the Hercules Ruling on the Birth Control Benefit
Vajazzling for Jesus: Hobby Lobby Aims a Glue Gun at the Birth Control Benefit
Sotomayor Is Right: Hobby Lobby’s Legal Claims Are Not “Indisputably Clear”
Hobby Lobby Appeals Contraception Ruling
Bush Appointee Rejects Hobby Lobby Arguments Against Birth Control Benefit
In Hobby Lobby Case, Federal Court Weighs Whether Secular Employers Can Exercise Religious Rights
DOJ Makes The Case For Dismissing Hobby Lobby Suit Against Birth Control Benefit
Religious and Activist Groups Petition Hobby Lobby to Stop Birth Control Lawsuit
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