Supreme Court to weigh if 'Obamacare' birth-control mandate can stand

The US Supreme Court on Tuesday agreed to take up two potential landmark cases examining whether President Obama’s health-care reform law violates the religious rights of company owners and their corporations by forcing them to provide their employees with certain contraceptives that offend the owners’ religious beliefs.

The Obama administration recognizes that the so-called contraception mandate violates the religious teachings of some faiths. The administration has granted exemptions from compliance to churches and church-affiliated organizations. But the federal government refuses to extend the same religious accommodation to business owners who seek to run their companies on the basis of their religious principles.

Instead, government lawyers argue that for-profit corporations cannot exercise religious rights and, thus, enjoy no protections under the First Amendment’s "free exercise" clause or the Religious Freedom Restoration Act. Any religious beliefs of the owners of these businesses, they say, are irrelevant in the face of a generally applicable law that seeks to promote public health and equal access for women to health-care services – including contraceptive services that some find religiously and morally offensive.

The Obama administration views this issue not as a potential infringement of religious rights and religious liberty but as an attempt by certain business owners to impose their personal religious beliefs on their employees.

The administration’s primary argument is that it is up to each individual employee – not the company or its owners – to decide which contraceptive services to use. The resulting decision does not violate the employer’s religious rights because the employer’s involvement is too far removed from the worker’s decision, the government says.

Lawyers for the corporations and their owners counter that the business owners were already providing generous health-care benefits for their employees long before the president’s health-care reform law. Their objection is to being ordered by the government to pay for certain contraception services in their company coverage plans.

To religious owners, paying for and offering such plans to their employees make them complicit in what they view as abortion. If life begins when a human egg is fertilized, then any contraception method that results in destruction of a fertilized human egg is, by extension, destruction of human life, they say.

“Given their beliefs, [the owners] cannot cover [their employees] without facilitating what they believe to be an abortion,” Kyle Duncan, a lawyer with the Becket Fund for Religious Liberty, wrote in his brief urging the high court to take up the issue.

“[The owners] do not object to covering any of the sixteen other forms of FDA-approved contraceptives, but they cannot cover these four methods without violating their faith,” Mr. Duncan said. 

The four objectionable methods are two kinds of IUDs and the Plan B and Ella morning-after pills.

The owners do not object to providing no-cost coverage for 16 other contraceptive methods, including the pill.

The contraception mandate forces the corporations and their owners to confront a Hobson’s choice: either provide the offensive contraceptives and violate their sincerely held religious beliefs, or face a potentially ruinous fine of $100 per day per employee for noncompliance with the ACA.

Even if a company opted out of providing its own insurance to its employees, it would still face significant tax penalties under the ACA.

The justices agreed to consolidate two cases involving companies run by religious families challenging the contraception mandate. The case will be set for an hour of oral argument in March or April, with a decision expected by late June.

One of the companies, Hobby Lobby, is a national chain of 500 arts and crafts stores with 13,000 full-time employees. The company is based in Oklahoma City and is owned by David and Barbara Green and their children. The company’s official statement of purpose says the Greens commit to “honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”

In their brief to the court, the Greens say the contraception mandate puts them in a no-win situation. Unless they violate their religious beliefs, they’ll face a massive tax penalty.

With 13,000 employees, the company would owe fines of $1.3 million per day, or roughly $475 million a year.

Hobby Lobby could stop providing insurance to its employees. In that option, the company would owe annual fines of $26 million. But that would put the firm at a significant competitive disadvantage in hiring and retaining employees and would be disruptive to the business and the lives of their employees, lawyers say.

The second case involves a Mennonite family from Pennsylvania, headed by Norman and Elizabeth Hahn. The family runs Conestoga Wood Specialties Corporation, which makes doors and kitchen cabinets. 

The Hahns seek to operate their 950-employee company in accord with the teachings of their Mennonite faith. That includes opposition to any contraceptive method that might cause the death of a human embryo. Like the Greens and Hobby Lobby, the Hahns object on religious grounds to four of the 20 ACA-required contraception methods.

If they remain faithful to their religious principles and refuse to comply with the contraception mandate, they face a penalty tax of $35 million a year.

Appeals courts have ruled in support of Hobby Lobby in the 10th US Circuit Court of Appeals, but have ruled against Conestoga Wood in the Third Circuit. The conflicting decisions create a split among the appeals courts that the Supreme Court is positioned to resolve.

“This Court has never denied families or their business corporations the free exercise rights enjoyed by other corporations and sole proprietors. Nor does this Court’s precedent or the Religious Freedom Restoration Act (RFRA) create two standards for reviewing free exercise rights: one in business, and another everywhere else,” David Cortman, of the conservative legal group Alliance Defending Freedom, wrote in his brief on behalf of Conestoga Wood.

“Family owners argue both that their corporations exercise religion and that they exercise religion through those corporations,” Mr. Cortman said.

In a statement after the high court agreed to take the case, Mr. Green, Hobby Lobby founder and CEO, said, "This legal challenge has always been about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution.

"Business owners should not have to choose between violating their faith and violating the law," he said. 

White House spokesman Jay Carney said the administration believes the contraception mandate is lawful and will be upheld by the Supreme Court.

“As a general matter, our policy is designed to ensure that health care decisions are made between a woman and her doctor,” he said in a statement. “The President believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.”

Mr. Carney noted that the administration is offering an exemption from the contraception mandate to churches and religious organizations – but not to for-profit businesses.

“These steps protect both women’s health and religious beliefs, and seek to ensure that women and families – not their bosses or corporate CEOs – can make personal health decisions based on their needs and their budgets,” Carney said.

Critics of the contraception mandate argue that until passage of the Affordable Care Act, no federal law or regulation forced religious business owners to choose between adhering to their sincerely held religious principles or complying with a government order to provide their employees with access to a wide range of no-cost contraceptives.

US Solicitor General Donald Verrilli presents the case from a starkly different perspective. He portrays religious business owners as attempting to impose their religious views on their employees by denying the full complement of contraceptives to which employees are entitled under the ACA.

Mr. Verrilli said the government is unaware of any decision by the Supreme Court or an appeals court (other than the 10th Circuit decision in the Hobby Lobby case) “that has ever accepted a claim that RFRA enables a for-profit corporate employer to exempt itself from generally applicable employment regulations.

“The court of appeals decision [in the Hobby Lobby case] is incorrect and would transform RFRA from a shield for individuals and religious institutions into a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws,” Verrilli wrote.

The ACA does not require the business owners to provide health insurance, according to the government. It requires the corporation to do so.

“Throughout this litigation, the government has taken the unprecedented position that commercial businesses and their owners – simply because they make profits – cannot exercise religion under the Constitution or federal law,” said Duncan of the Becket Fund. “When the federal government … takes a miserly view of the scope of religious exercise, the question is undeniably important,” he added.

“These issues need to be settled now by this Court. The existing conflict is likely to deepen rapidly, with the same issues pending in some 35 other cases around the country,” Duncan said.