Supreme Court to Decide ACA Contraceptive Mandate Issue

Darrell VanDeusen
Darrell VanDeusen

There has been a lot of discussion on the Affordable Care Act (ACA) over the past few months. Congress has been twisting about it; the Obama administration has been pilloried over it. But one branch of government was missing in the recent theatrics.  Not anymore.  On November 26, the Supreme Court threw its hat in the ring too, agreeing to consider the validity of the women’s preventive services mandate 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.

This should be interesting. As an initial matter, 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.

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 questions to be addressed 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.”

Both the Administration and members of Congress expressed delight that the Court took up these cases.  There was, of course, no agreement on the likely outcome — both sides suggested a decision in their respective favor is more likely.   No date has been set for oral argument.

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