On Tuesday March 25, the Supreme Court will hear oral arguments on Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, two highly anticipated cases that deal with the Affordable Care Act, religious freedom and women's access to contraception. The case won't be decided Tuesday, but we could get a clear indication of which way the justices are leaning. Here's what you need to know — and who to read — before tomorrow.
What are these cases about?
It all starts with the Affordable Care Act. The law stipulates that employers need to provide health care for their employees that covers all forms of contraception at no cost. However, some for-profit corporations have insisted they should not have to pay for all of these services — especially those that conflict with their beliefs.
The owners of Hobby Lobby and Conestoga Wood Specialties don't have a problem with offering insurance that covers most forms of birth control, but they aren't willing to cover emergency contraceptives — like Plan B or ella -- or IUDs. Hobby Lobby contends its "religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception." The question these cases are seeking to solve is whether for-profit companies have a right to exercise religious freedom under the Religious Freedom Restoration Act, a federal law passed in 1993 that states the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability." If they do, does the government have a compelling interest to override it in this instance?
There is a separate set of cases dealing with whether religiously affiliated businesses are exempt from the Affordable Care Act's contraception mandate.
How did this case make it to the Supreme Court? As CNN noted, "Three federal appeals courts around the country have struck down the contraception coverage rule, while two other appeals courts have upheld it. That 'circuit split' made the upcoming Supreme Court review almost certain." There are at least 47 cases that have been filed concerning for-profit companies and the contraception mandate.
Who are the people to know in this case?
Hobby Lobby is a chain of 640 arts and crafts stores owned by the Green family, and based in Oklahoma City. An article in the Wall Street Journal last week explained how they came to file the suit against the Health and Human Services department:
Hobby Lobby officials say religious participation is optional for its 28,000 employees. "If they don't believe in God, we love them where they are," says Dianna Bradley, the company's director of chaplain services.
In 2012, a lawyer for the Becket Fund for Religious Liberty, a nonprofit Washington law firm, called Hobby Lobby's general counsel to inform him of the health law's contraception requirement and to ask whether the company wanted to file a suit.
Mr. Green says he was shocked to discover Hobby Lobby was in fact offering in its insurance plan some of the emergency contraceptives at issue. He called for the insurer to revoke that coverage and signed onto the lawsuit.
The Greens are devoted Southern Baptists, and their family foundation is building a Bible museum five blocks south of the U.S. Capitol, set to open by 2017. The family foundation focuses more broadly on "gospel outreach efforts in the U.S. and abroad, contributing to the building of a dome for the Oklahoma State Capitol, and supporting social services such as the City Rescue Mission," according to the Religious News Service.
Conestoga Wood Specialties — a company that manufactures kitchen cabinets — was founded by Norman Hahn, a conservative Mennonite in Pennsylvania. His company's lawyer in this case, Randall Wenger, told Lancaster Newspapers last week, "As Mennonites, they're not thrilled about going to court. They're probably the most reluctant clients I've ever encountered."
The article also noted,
Norman and his wife, Elizabeth, for example, oversee a family foundation that contributed more than $1.1 million to 20 nonprofits between 2010 and 2012. The Pennsylvania Relief Sale, benefiting Mennonite Central Committee, was the top recipient, receiving $150,000 over those three years. Three organizations received $125,000 during those years: Christian Aid Ministries of Berlin, Ohio, Clinic for Special Children of Strasburg, and Wycliffe Bible Translators of Locust Grove. ... Separately, the Hahns have financially supported the political campaigns of a handful of Republicans. Norman, for example, contributed $10,000 to Lynn Swann's race for governor in 2006, $2,500 to Rick Santorum's race for the presidency in 2011, and $1,000 to Gordon Denlinger's race for state House in 2006.
Lyle Denniston at SCOTUSblog has a concise summary of these two companies' reasons for heading to court:
The Green family members signed a formal commitment to run the two chains according to Christian religious principles — closing on Sunday, advertising their religious orientation, and playing religious music in the stores. The owners and their stores do not object to every part of the contraceptive mandate, but they do object to the use of any drugs or intrauterine devices that — in the words of their lawyers — “end human life after conception.”
They have estimated that, if they follow their faith and violate the mandate, they face fines of about $1.3 million a day, or almost $475 million a year. They believe that canceling their health plan to avoid obeying the mandate would put them at a competitive disadvantage with other employers. They do not believe that the government can force them to make such choices.
The other company is Conestoga Wood Specialties Corp., a company based in East Earl, Pennsylvania, that also has operations in other states, making wooden cabinets and wood specialty products. It has about 950 employees.
The company is owned by members of the Hahn family, who are Mennonite Christians. Their faith teaches them that it is wrong to take a human life and to prevent its creation through drugs and intrauterine devices. If the company or its owners were to violate the mandate to adhere to their beliefs, they estimate that they would face financial penalties of about $35 million a year.
Paul Clement will be arguing for the challengers in Tuesday's oral arguments — which have been extended to 90 minutes from the usual hour. Neal Katyal, who once served as acting solicitor general under Obama, told New York Magazine in 2012 that, “Paul truly is the best lawyer of his generation." In the past few years, he has argued against the Affordable Care Act's legality in front of the Supreme Court and he has defended Arizona's controversial immigration law. He has argued for the constitutionality of the Defense of Marriage Act, and he has argued against the White House's block of South Carolina's voter-ID law. When it comes to the most important conservative causes being argued at the legal level these days, Clement is usually involved.
It’s conventional wisdom in some circles that Mr. Verrilli is a fumbling lawyer who can’t hold his own at the Supreme Court. He received bad marks from professional colleagues after defending the Affordable Care Act last year, and obviously disappointed at least one prominent observer in Shelby County v. Holder — the voting rights case — a few weeks ago.
This reputation is undeserved. Mr. Verrilli isn’t showy, but he is a deeply experienced and capable advocate who finds ways to make technical legal arguments that persuade a majority of justices. While he’s not inspiring, he’s often effective.
What are the arguments on either side of the case?
Hobby Lobby and Conestoga Wood Specialties' argument for not providing emergency contraception and IUD coverage to their employees can be boiled down to this: Because of the religious nature of our companies, we are entitled to religious freedom exemption from the Affordable Care Act's mandate because of the Religious Freedom Restoration Act — the same exemption that has been afforded to nonprofits with a religious nature. SCOTUSblog's Lyle Denniston has a good look at the nuanced details of this argument.
At the level of their greatest potential, the two cases raise the profound cultural question of whether a private, profit-making business organized as a corporation can “exercise” religion and, if it can, how far that is protected from government interference. The question can arise — and does, in these cases — under either the First Amendment’s Free Exercise Clause or under a federal law, the Religious Freedom Restoration Act, passed by Congress in 1993.
In a manner of speaking, these issues pose the question — a topic of energetic debate in current American political and social discourse — of whether corporations are “people.” The First Amendment protects the rights “of the people,” and the 1993 law protects the religious rights of “persons.” Do profit-making companies qualify as either?
Aside from whether corporations do have any religious rights, as such, the cases also raise the question whether the religious rights of their owners — real people, who undeniably can act according to their faith — are violated by the requirement that their companies obey the contraceptive mandate. Ordinarily, in business law, corporations are separate from their owners, but the owners in these cases resist that notion, at least so far as the owners’ religious views actually shape the business of their companies.
No one doubts that the owners of the two companies have sincere religious objections to some forms of birth control or that their beliefs do counsel them to avoid any role in providing those services to their employees. The companies and their owners do not have to convince the Court that that is what they believe — only whether that belief controls enforcement, or not, of the mandate.
The Obama administration's argument also focuses on how they believe the Religious Freedom Restoration Act should be applied to this case. Verrilli will argue that the federal government has never afforded for-profit corporations the religious protections Hobby Lobby says are being violated by the contraception mandate. Additionally, they focus on how employees would be affected by an exemption, and say these women are also entitled to protection for their freedom to choose their own health coverage. As Hobby Lobby argues that providing contraception coverage would be a burden for them, the federal government will argue that not covering these forms of contraception would be a burden on employees who don't necessarily share these companies' beliefs.
Speaking of those burdens, the Obama administration has a backup argument if the Court decides that for-profit corporations qualify for religious freedom exemptions. Pew Research has a good explanation for this prong of the government's argument:
Even if RFRA does apply, the government contends, the contraception mandate does not rise to the level of being a “substantial religious burden” (which is required if the law is to apply) because the companies are significantly removed from an employee’s decision to use contraception. After all, they point out, Hobby Lobby and Conestoga do not directly provide contraception services to their workers. Instead, they offer their employees health insurance that covers a huge array of medical services, including birth control. In addition, any decision to use birth control rests with the employees, not the insurance providers or the companies.
Finally, the government argues, the mandate advances a compelling government interest because it is part of a comprehensive reform of the nation’s health care system, and granting the companies an exemption would deprive some Americans of important benefits provided by that reform. In this case, many women would not receive free contraceptive services, thwarting an important public health goal for the government – that all women have adequate access to effective birth control. As for RFRA’s requirement that the mandate be enforced in the least restrictive way possible, the government argues that any alternative to the insurance mandate would mean upending the ACA’s health care model (which revolves around employment-based health insurance) and replacing it with something different, a highly impractical option, according to the government.
Many of the groups supporting the government's interpretation of this case also bring up what a decision in favor of Hobby Lobby would mean in the future. What other religious protections will corporations argue for?
The evolution of the Religious Freedom Restoration Act to become the foremost tool in the conservative legal toolkit — it has also featured prominently in cases around the country dealing with businesses' right to deny service to LGBT customers for same-sex weddings — has been a surprise to many of the legislators who crafted the law early during the Clinton administration, as MSNBC reported yesterday:
‘It was never intended as a sword as opposed to a shield,” said Rep. Jerry Nadler, one of the architects of RFRA in the House. “Once you went into the commercial sector, you couldn’t claim a religious liberty to discriminate against somebody. That never came up. It was completely obvious we weren’t talking about that.”
The vaunted left-right alliance on RFRA has fallen apart over such claims. “If anyone had ever come up with a scenario like what’s been proposed by Hobby Lobby, that coalition would have exploded like someone hitting a watermelon with a shotgun,” said Barry Lynn of Americans United for Separation of Church and State. “There would have never been a Religious Freedom Restoration Act.”
Eight-four amicus briefs have been filed for this case — which is a lot, and a testament to the importance of the impending decision and controversy surrounding this issue. These briefs, also known as friend-of-the-court briefs, are filed by individuals and organizations not affiliated with the case, but who have a vested interest in the case's outcome.
ABC News has a good roundup of each side's arguments for each of the big legal questions that need to be answered in the Hobby Lobby case.
How could the case be decided?
Here are the four things you should read to understand how this could all end.
- Sam Baker at National Journal lays out all the possible and probable ways each side could lose. Because the lower federal courts were so schizophrenic on this case, things feel particularly up in the air. It all depends on 1) what the court thinks and 2. how big a decision they want to make.
- Pew Research focuses a bit more on what the significance of any decision would be. Depending on how the justices decide, the shape of future religious freedom cases could change dramatically.
- Lyle Denniston says one thing is for sure: "Whatever the Court decides, it will not decide the fate of the Affordable Care Act."
"The nation’s politics, and many of its legislatures (including Congress), are absorbed with debates over whether to keep the law, to amend it, to render it unenforceable, or to repeal it altogether. None of that depends upon the outcome of this case. The Court has not been asked to strike down any part of the law, and it almost certainly won’t volunteer to do so. All that is at issue is who must obey the contraceptive mandate."
"Sinkhole of bureaucracy" — David A. Fahrenthold, The Washington Post
"Virginia Governor Finds Jollity Is No Guarantee Against Gridlock" — Trip Gabriel, The New York Times
FiveThirtyEight Senate Forecast: GOP Is Slight Favorite in Race for Senate Control" — Nate Silver, FiveThirtyEight