Affordable Care Act and birth control: Can corporations assert religious rights?

President Obama’s Affordable Care Act comes under close scrutiny at the US Supreme Court on Tuesday, with the justices poised to examine whether the measure violates the religious rights of company owners who object to being forced by the government to pay for certain birth control methods that offend their religious beliefs.

The high court is set to hear two consolidated cases in which business owners are seeking a religious exemption from the ACA’s requirement that large employers provide their workers cost-free contraceptives.

The Obama administration has granted a complete exemption to churches and other houses of worship. And it has offered a special accommodation to non-profit religious-affiliated groups – including those organized as corporations.

But government lawyers insist that for-profit corporations are not entitled to exercise religious rights and must comply with the full terms of the ACA’s contraception mandate.

The case is a potential landmark. It is perhaps the most important test of the scope of religious rights in America in a generation.

At issue is the government’s power to deny a religious exemption when sincerely-held religious beliefs clash with a legislative mandate that violates those religious beliefs.

The dispute is set for 90 minutes of oral argument and will feature two of the same lawyers who faced off in the 2012 high court challenge to the health care reform law – US Solicitor General Donald Verrilli, who is again defending the law, and former Bush administration Solicitor General Paul Clement, who is challenging the contraception mandate.

The issue arises at a time of bitter national debate and mounting litigation over a range of social issues that divide liberals and conservatives, including birth control, gay rights, and same-sex marriage.

Critics accuse the Obama administration of waging a war on religion and religious liberty. Supporters say the administration is seeking to prevent “religious” individuals from imposing their views on others and using religion as a license to discriminate.

The First Amendment protects the free exercise of religion, but the Supreme Court ruled in 1990 that constitutional claims to religious freedom must yield in the face of generally applicable laws.

That case involved a request by native-Americans for an exemption from drug laws that would permit sacramental use of peyote in their religious gatherings.

The high court upheld the drug laws and denied the exemption in a landmark decision that substantially narrowed the scope of religious liberty in the US.

The decision sparked a national outcry by religious organizations – and triggered extreme alarm among minority sects whose religious views are often attacked, denounced, and ridiculed by others.

Congress responded by passing the Religious Freedom Restoration Act (RFRA). The law seeks to empower individuals to challenge government provisions that impose a substantial burden on adherence to religious faith.

The law is designed to encourage the government to find an accommodation that allows the government to pursue its program but with minimal disruption to religious beliefs.

RFRA establishes a three-prong analysis. First the government’s action must cause a “substantial burden” on religious practice. Second, the government must demonstrate that it has a compelling interest in advancing its program. Third, the government must show that its program is the least restrictive way to reach its goal.

In the current case at the high court, the business owners sued the federal government under RFRA to force the Obama administration to recognize and respect their religious beliefs.

“The government does not dispute that these are sincere religious beliefs or that they deserve protection,” writes S. Kyle Duncan of the Becket Fund for Religious Liberty in his brief on behalf of one of the business owners.

“Yet, the mandate compels [religious business owners] to do precisely what their religion prohibits or face draconian consequences – including millions in fines, private lawsuits, and government enforcement actions,” he says.

At issue is a provision in the president’s health care reform law that requires businesses with more than 50 employees to provide cost-free access to a full range of government-required contraception methods.

The business owners do not object to providing cost-free contraception and reproductive health services for their employees. Rather, their objection is targeted at four of the 18 required birth control methods. They object to two kinds of intrauterine devices (IUDs) and two versions of the so-called morning-after pill, Ella and Plan B.

They say these devices and drugs can prevent the implantation of a fertilized egg in the uterus and, thus, are a form of abortion.

The objecting business owners are devout members of their chosen faiths and believe that life begins at conception. Their religious teachings hold that any effort to prevent implantation of a fertilized egg in the womb is a form of abortion.

The owners complain that the Obamacare mandate is conscripting them into providing financial support to a system that condones and enables the destruction of human life. To them it is immoral and an activity that religious conscience requires them to avoid.

The Obama administration defends the federal contraception mandate as an essential part of its national campaign to advance public health and promote equal and cost-free access to health care for women.  

Government lawyers say that owners of for-profit corporations may not assert their own personal religious rights through their companies.  And they argue that corporations in business to make money cannot practice religion.

The lawyers add that merely funding the contraception program cannot offend the owners’ religious beliefs because the health insurance plan is paid for by the corporation and the ultimate decision of whether to actually use any of the four religiously-offensive birth control methods belongs to each employee.

“The challenged provision imposes no personal obligations on the [religious owners]; it instead regulates only the corporations they own and the group health plan the corporations sponsor,” Solicitor General Verrilli writes in his brief.

“The provision therefore does not burden the [owners’] individual exercise of religion in any cognizable sense, and RFRA does not entitle them to an exemption for the corporations based on their individual religious beliefs,” he writes.

The government also argues that individualized religion-based exemptions would frustrate the administration’s compelling interest in creating a comprehensive nationwide health care insurance system. Such exemptions would “directly and materially harm the very individuals [employees] the scheme was intended to benefit.”

Mr. Verrilli quotes a 1982 Supreme Court decision involving an Amish farmer and carpenter who refused to pay social security payroll taxes on behalf of Amish men he hired to work on his farm. The Amish believe they have a Biblical obligation to provide for their own elderly and needy, and that it would be a sin to participate in a government-run insurance program that might replace those personal biblically-mandated requirements.

The Supreme Court ruled that a religious exemption would undercut the national Social Security system. “Not all burdens on religion are unconstitutional,” the court said.

“When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity,” the court said.

“Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees,” the justices said. The court reached that decision even though in that case both the employer and his employees were Amish and opposed to participating in the Social Security system.

The government warns that if the religious owners in the current case win their exemption at the Supreme Court it could open the floodgates to limitless demands for other religious exemptions.

“Employers might assert religious objections to coverage of virtually all conventional medical treatments, including immunizations, blood transfusions, anti-depressants, medications derived from pigs, and gene therapy,” Verrilli says.

“The result would be a patchwork of unpredictably incomplete coverage for employees dictated by the religious beliefs of their employers’ shareholders,” he said.

The high court case stems from a lawsuit filed by the owners of Oklahoma-based Hobby Lobby Stores, a chain of 500 stores with more than 13,000 employees.

Hobby Lobby is owned and run by five members of the Green family. The family also owns and runs Mardel, Inc., a Christian bookstore with 35 outlets and 400 employees.

The family members are all devout Evangelical Christians who seek to run their businesses in full accord with the precepts of their Christian faith. According to a company statement the family is committed to “honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”

Those principles include a commitment to remain faithful to their religious view that human life begins at conception and that birth control that prevents the development of a fertilized egg is a sin.

The Obamacare mandate offers them a no-win choice of options. If they comply with the federal mandate, they must compromise their religious beliefs. On the other hand, if they stand up for religious principle, Hobby Lobby faces fines of $100 per day per employee or $1.3 million per day. On an annual basis that would be $475 million per year in fines for abiding by their religious beliefs, their lawyers say.

They would also face lawsuits by the government and by any employee who objected to the failure to abide by the terms of the ACA.

Hobby Lobby could opt out of providing its employees with health care coverage. To do so would deprive 13,000 employees of their health care benefits and subject the firm to $26 million in annual penalties.

 The bottom line, according to their brief: “[The Greens] must either violate their faith by covering the mandated contraceptives, or subject their family businesses to crippling consequences.”

The other lawsuit was filed by the owners of a kitchen cabinet maker in Pennsylvania, Conestoga Wood Specialties. The business employs 950 workers.

Conestoga Wood is owned and operated by six members of the Hahn family. All six are devout members of the Mennonite Church and strive to run their business based on moral and spiritual principles that reflect their Christian faith. Among those principles is a belief that human life begins at conception and a religious conviction against being involved in the destruction of human life through abortion or other acts.

For the Hahns, the potential fines are $95,000 per day or $1.9 million a year.

“When the government uses substantial pressure to coerce a family business to act contrary to its owners’ religious beliefs, it burdens the free exercise of religion regardless of the business’ corporate form,” David Cortman, a lawyer with Alliance Defending Freedom, writes in his brief on behalf of the owners of Conestoga Wood.

Mr. Cortman says the ACA’s mandate is an unprecedented attempt to require “private citizens to purchase religiously objectionable products for others’ use.”

He adds: “Government may directly provide such items at will, but it cannot conscript private religious objectors into the government’s service.”

The cases are Sebelius v. Hobby Lobby (13-354) and Conestoga Wood Specialties v. Sebelius (13-356). A decision is expected by late June.