The other 'mandate': Foes of contraception rule to sustain legal battle if ObamaCare upheld

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A Supreme Court ruling on the federal health care overhaul is expected Thursday, and all eyes are on the fate of the individual mandate -- the endangered provision requiring most Americans to buy health insurance.

But unless the entire law is struck down, another "mandate" that's nearly as controversial will live on. And opponents of the so-called contraception mandate are planning to sustain their legal challenge against the rule once the frenzy over the Supreme Court decision dies down.

The lawsuits will "all go forward" if any part of the health care overhaul is left standing, said Hannah Smith, senior counsel with The Becket Fund for Religious Liberty.

Smith's group spearheaded the legal fight against the contraception mandate and is currently engaged in four separate federal lawsuits on behalf of four religious institutions. Earlier this year, dozens of other Catholic universities and groups filed their own set of coordinated lawsuits against the regulation.

All told, Smith said there are now 23 lawsuits in 14 states and the District of Columbia involving more than 50 plaintiffs.

At issue is the requirement from the federal health care overhaul that employers provide access to contraceptive care. The Obama administration several months ago softened its position on the mandate, but some religious organizations complained the administration did not go far enough to ensure the rule would not compel them to violate their religious beliefs.

Smith said the rule has forced religious organizations to make a choice between violating their beliefs and potentially shutting down.

"It's a very significant choice," she said.

Smith said her group's clients would all opt to disobey the Obama administration rule -- in turn subjecting themselves to a $2,000-per-employee fine. She estimated this could cost those groups between $300,000 and $600,000 a year starting in 2013.

The Becket Fund argues that the provision violates what's known as the Religious Freedom Restoration Act -- a federal law that bars rules that would impose a substantial burden on religious expression.

The Obama administration is currently trying to get the case dismissed, to allow time for the federal government to come up with its compromise measure.

The Obama administration originally pitched the free birth control plan as another way to expand access to health care and coverage -- the overarching goal of the federal health care law.

"Due in large part to cost, Americans used preventive services at about half the recommended rate," the administration said in a court brief filed earlier this year. "The (health care law) -- which includes the preventive services coverage provision at issue here -- seeks to cure this problem by making recommended preventive care affordable and accessible for many more Americans."

President Obama claimed this year that while many had "genuine concerns" about the proposal, others were using it as a "political football."

The contraception rule does include an exemption for religious organizations -- but that exemption does not cover many religious-affiliated organizations like schools and charities.

Complaints about the narrowly tailored exemption prompted a stand-off between the Obama administration and religious groups earlier this year. As a compromise, Obama and Health and Human Services Secretary Kathleen Sebelius decided insurers -- and not the religious-affiliated organizations themselves -- would be required to offer contraceptive coverage directly.

If the Supreme Court throws out the entirety of the health care overhaul this week, then the lawsuits over the contraception mandate would fizzle.

But the challenges are expected to continue in every other scenario -- even if the court strikes down the individual mandate only. Doing that would not impact the administration's contraception rule.

Like many foes of the health care law, Smith said her group was "cautiously optimistic" the court would strike down the entire law and in turn make the ongoing suits unnecessary. She claimed that would be a "great victory for religious liberty."