Supreme Court to review contraceptive coverage mandate in health-care law


(Karen Bleier/AFP/Getty Images)
November 26, 2013

The Supreme Court agreed Tuesday to consider a new challenge to President Obama’s Affordable Care Act and decide whether employers with religious objections may refuse to provide their workers with mandated insurance coverage for contraceptives.

The cases accepted by the court offer complex questions about religious freedom and equality for female workers, along with an issue the court has not yet confronted: whether secular, for-profit corporations are excepted by the Constitution or federal statute from complying with a law because of their owners’ religious beliefs.

The justices accepted two cases that produced opposite results in lower courts.

One was brought by the owners of Hobby Lobby, an arts-and-crafts chain that its owner, David Green, said is run on biblical principles. The full U.S. Court of Appeals for the 10th Circuit in Denver said forcing the company to comply with the contraceptive mandate would violate the Religious Freedom Restoration Act, a 1993 law providing special protections for religious expression.

In a divided opinion, the appeals court relied in part on the Supreme Court’s decision in Citizens United v. Federal Election Commission, which said corporations have political speech rights just as individuals do in spending on elections.

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy Tymkovich wrote for the majority.

The second case went the other way. A divided panel of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that Conestoga Wood Specialties, a Pennsylvania cabinet-making company owned by a Mennonite family, must comply with the contraceptive mandate.

That decision noted the 10th Circuit’s opinion but said that there was a “total absence of case law” to support the argument that corporations are protected by the Constitution’s guarantee of free exercise of religion.

“Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” Circuit Judge Robert E. Cowen wrote.

The religious freedom act prohibits the federal government from imposing a “substantial burden” on a person’s exercise of religion unless there is a “compelling governmental interest” and the measure is the least-restrictive method of achieving the interest.

The court said the cases will be consolidated for oral argument, which is likely to be in March.

In a dramatic 5 to 4 decision in June 2012, the Supreme Court upheld the basic underpinnings of what has come to be called Obamacare, which requires most Americans to obtain health insurance coverage or pay a penalty.

Employers of a certain size are required to offer coverage or be fined, and the Obama administration has said that among the basic benefits that must be offered is the full range of birth-control options approved by the Food and Drug Administration.

The administration exempted some religious groups from the requirement but has said that for-profit corporations cannot claim a religious exception.

In a statement, White House press secretary Jay Carney said: “We believe this requirement is lawful and essential to women’s health and are confident the Supreme Court will agree.”

Carney said birth-control decisions should be up to a woman and her doctor. “The President believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.”

Sen. Patty Murray (D-Wash.) said the issue is one of equality.

“Allowing a woman’s boss to call the shots about her access to birth control should be inconceivable to all Americans in this day and age,” she said in a statement, adding: “That is a slippery slope that could lead to bosses dictating everything from an employee’s ability to access HIV treatment to their ability to vaccinate their children.”

On the Republican side, House Speaker John A. Boehner (Ohio) called the requirement “an attack on religious freedom, and I’m hopeful it will be reversed by the Court.”

Sen. Orrin Hatch (R-Utah) said: “I’ve long argued that Obamacare violated the religious liberty protections Americans hold dear, regardless of political party.”

The two cases the court accepted have some differences. But Matt Bowman of the Alliance Defending Freedom, who represents Conestoga owner Anthony Hahn and his family, said both involve “families putting their faith in the context of business.”

Hobby Lobby has grown from a single store opened in Oklahoma City in 1972 to more than 500 stores nationally and a workforce of 13,000 people of all faiths. In its brief, the company said it shows its religious foundation by such actions as closing on Sunday and refusing to sell shot glasses.

Conestoga is a closely held family corporation that employs 950 and specializes in cabinetry.

Both sets of owners say they are comfortable offering insurance plans that cover most types of contraceptives, but not what they consider “abortifacients.” Conestoga objects to offering the emergency contraceptives Plan B and Ella. Hobby Lobby adds intrauterine devices (IUDs) to that list. (The court took no action on a petition from a Michigan company that does not want to cover any contraceptives.)

That has set off a debate among groups about what exactly the contraceptives do.

The American College of Obstetricians and Gynecologists said “abortifacient” has a precise meaning. “Contraceptives that prevent fertilization from occurring, or even prevent implantation [of a fertilized egg] are simply not abortifacients regardless of an individual’s personal or religious beliefs or mores,” it said in a brief.

But a competing brief from anti-abortion obstetricians and gynecologists and the Catholic Medical Association takes issue. “This is a nonresponse to the concern that a drug or device can work after fertilization, by blocking the implantation of a developing human embryo,” it said. “Such drugs might not end a ‘pregnancy’ . . . but it does end the life of a unique human being.”

The cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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