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Supreme Court Could Act This Week on Contraception Challenges

Jessica Mason Pieklo

The Roberts Court will meet in conference Tuesday to consider entering into the fight over corporate religious rights.

On Tuesday, the U.S. Supreme Court will meet in private conference to consider four different challenges to the birth control benefit in the Affordable Care Act. Should the Court decide to take up one or all of the challenges, the case(s) would be heard this term, just two years after the Roberts Court upheld the overall constitutionality of the health-care reform law.

Three of the legal challenges center on whether secular, for-profit corporations have religious rights, and if so, whether requiring businesses provide insurance coverage to employees that includes contraceptives violates those religious rights. But the cases and legal issues before the Supreme Court are slightly different from one another, which could significantly affect the scope of any action the Supreme Court takes.

For example, the legal issue in Hobby Lobby is a narrow one, which is likely one reason the Obama administration has asked the Roberts Court to step in on this case but to wait on the others. Specifically, the issue in Hobby Lobby is whether the Religious Freedom Restoration Act (RFRA) allows for-profit businesses to avoid complying with the birth control benefit. That is a much narrower issue than, for example, in the Consetoga Wood case, in which a Mennonite family-owned furniture manufacturing business wants the Court to answer whether the birth control benefit violates both the RFRA and the company’s rights under the First Amendment free exercise clause. Similarly, plaintiffs in the Autocam case have asked the Supreme Court to review a circuit split that a corporation is not a “person” under the RFRA or the First Amendment and, therefore, does not have standing to challenge the law’s coverage requirement. The Roberts Court could decide to take all, some, or none of the challenges.

Among those arguing on behalf of corporate religious rights is Paul Clement, a seasoned Supreme Court litigator who led the right’s attack on the Affordable Care Act, affirmative action, and the Voting Rights Act. Clement represents Hobby Lobby, a national craft store chain and one of the first businesses to successfully challenge the mandate. Both Hobby Lobby and the Obama administration have asked the Supreme Court to take up this case, significantly increasing the chance that if the Court steps in this term, it would do so in this case.

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In addition to the for-profit challenges, one nonprofit has asked for Supreme Court review of its challenge to the health-care law. Liberty University filed a petition asking the Supreme Court to review the individual and employer mandate, arguing Congress did not have the power to pass the mandate and that the mandate violates both Liberty University’s First Amendment religious rights and its rights under the RFRA. Last year, the Supreme Court revived the university’s challenge after a federal appeals court initially ruled the school’s lawsuit had been filed prematurely.

The Supreme Court could announce its decision on granting review of any of the challenges as early as end-of-day Tuesday.

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