On March 25, the Supreme Court heard oral argument on the validity of the women’s preventive services mandate under the Affordable Care Act (ACA) in two companion cases, Sebelius v. Hobby Lobby Stores, Inc., 2013 U.S. LEXIS 8418, granting cert. from 723 F.3d 1114 (10th Cir. 2013), and Conestoga Wood Specialties Corp. v. Sebelius, 2013 U.S. LEXIS 8419 granting cert. from 724 F.3d 377 (3d Cir. 2013).
Also known as the “contraception mandate,” the provision requires health plans offered by employers with 50 or more employees to provide coverage for contraceptive drugs, devices and related counseling at no charge to employees. That issue was a big one for some religious employers when Obamacare was challenged in Congress, but that’s not the issue now. The Court is hearing cases on the constitutionality of the mandate as applied to for-profit, secular corporations whose owners object to providing contraceptive coverage on religious grounds.
The questions considered in the companion cases are:
- In Hobby Lobby: “Whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”
- In Conestoga Wood: “Whether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the ACA.”
Courts are split on whether a closely held corporation, either in its own right or through its owners, may exercise religion, as contemplated by the First Amendment’s free exercise clause. The questions asked by the Justices reflected a (not surprising) split in whether a for-profit business may even exercise religion.
In the Hobby Lobby Stores case, the Tenth Circuit held that two corporations and their owners would probably prevail on the argument that the mandate violates the Religious Freedom Restoration Act, (RFRA), because it require the corporations either to provide insurance coverage for contraceptives in violation of their religious beliefs or pay a fine. In the Conestoga Wood Specialties case (involving a Mennonite family’s woodworking business), however, the Third Circuit reached the opposite conclusion.
The RFRA provides that even by way of a neutral law of general applicability, the federal government cannot place a substantial burden on religious exercise unless the regulation serves a compelling government interest and is the least restrictive means of serving that interest. Justice Kagan, considering the employers’ challenge suggested that to interpret the RFRA as they desire would subject the entire U.S. Code to the “compelling governmental interest” standard.
Justice Scalia pushed Solicitor General Verrilli on whether any case has held that a for-profit enterprise cannot make a freedom of religion claim. Verrilli conceded that there is not, but said that recognizing an exemption from the contraceptive mandate here would “impose a burden on third parties or extinguish rights of third parties, employees or others, and that really can’t be what Congress was thinking about.”
A decision from the Court is expected before the end of its term in June.