Obamacare’s birth control mandate is headed to the Supreme Court

November 26, 2013

(Ed Andrieski/AP)

With dozens of lawsuits on the issue already filed, the Supreme Court announced Tuesday that it would take up two private companies' challenges to the health law's birth control mandate.

Obamacare, in other words, is headed back to the Supreme Court.

The Supreme Court will hear two challenges to the requirement that all employers provide birth control coverage to their workers. One comes from craft store chain Hobby Lobby and the other from Conestoga Wood Specialties, a custom cabinet-making company in Pennsylvania.

The owners of both companies have argued that the requirement to provide employers with contraceptive coverage is a violation of their religious liberty. And, in Hobby Lobby's case, the 10th Circuit Court of Appeals agreed: The craft store won a preliminary injunction against the health law requirement this past summer. The Department of Justice then appealed that ruling to the Supreme Court, leading to today's granting of cert for the case.

Right around the same time, Conestoga Wood Specialties lost a similar challenge in the 3rd Circuit Court of Appeals. That appeals-court-level split all but guaranteed that the Supreme Court would take up the issue.

The Supreme Court's decision here won't be especially pivotal to the future of the health law in the way that the June 2012 individual mandate decision was. While this has been one of the more hotly contested parts of the Affordable Care Act, it is not a central policy that holds everything together, as the requirement to purchase coverage near certainly is.

Instead, this decision will have a whole lot more to do with a separate federal law, the Religious Freedom Restoration Act, known in legal circles as RFRA. This is a Clinton administration law that allows private individuals to challenge federal regulations that put a "substantial burden" on their ability to exercise a sincere religious belief.

If a private individual can prove that substantial burden, it's up to the government to show two things: That the law furthers a compelling government interest and that that interest cannot be furthered in any other way that would be less restrictive to religion.

Solicitor general Donald Verrilli (remember him?) has argued that Hobby Lobby shouldn't be eligible for RFRA protection because it is not an individual, but rather a for-profit corporation.

"The court of appeals erred in concluding that the respondent 'for profit businesses focused on selling merchandise to consumers' are 'persons' engaged in the 'exercise of religion within the meaning of RFRA," Verrilli argued in his Supreme Court petition.

This spring, we'll learn whether the Supreme Court agrees with him.

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Ezra Klein · November 26, 2013