On Tuesday, the U.S. Supreme Court will hear oral arguments in two cases challenging the birth control benefit in the Affordable Care Act (ACA). It’s the second time in as many years that conservative business owners have argued to the Court that all or part of the health-care law is unconstitutional.
While this challenge may look to be limited to just birth control, there is in fact a lot more at stake.
First, Some Background
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Instead of attacking the individual mandate in the ACA (which requires that individuals be insured or else incur a penalty) or the power of the federal government to regulate the health insurance market generally, as happened in the past, conservatives are this time challenging the contraception mandate—the provision of the ACA that requires that insurance plans, including those provided by employers, cover contraception under preventive health care and thus as with other preventive care, without a co-pay.
The birth control benefit is an enormous step forward for public health. The wide-ranging public health benefits of contraception as preventive medicine have been well-known (not to mention a matter of common sense) for a long time, but until the Affordable Care Act women faced a “coverage gap” wherein preventive health care by default did not cover reproductive health-care needs at all—or if it did, it did so at additional cost.
Under the ACA, that’s largely changed. I say “largely” because the requirement that contraception be covered as part of employee health insurance plans doesn’t actually apply to all employers. Churches and other houses of worship do not have to comply with the requirement, while religiously affiliated nonprofits such as church-run hospitals, nursing homes, and universities (think Little Sisters of the Poor and the University of Notre Dame) are able to opt out of providing coverage under the law’s broad exemptions for those kinds of organizations by completing a form and letting a third party step in and provide contraception directly to those covered employees, students, and staff.
That leaves secular, for-profit corporations as the primary private employers who must offer insurance with no-copay birth control coverage. But on Tuesday, the Supreme Court will decide if they too get to opt out.
Who Is Involved?
The Supreme Court will hear in one hearing the legal challenges of two for-profit businesses, Hobby Lobby and the Conestoga Wood Specialties Corporation. Hobby Lobby is a national arts-and-crafts retail chain, while Conestoga is a Pennsylvania-based furniture maker. Both companies object to providing health insurance coverage for some kinds of contraception, claiming that the ACA’s requirement that businesses provide employees equal health insurance coverage violates the companies’ religious beliefs.
Each side has 45 minutes to make their best argument to the Supreme Court justices. The oral arguments will pit two superb litigators against each other in what is now a familiar billing before the court: Arguing for the businesses is Paul Clement, the attorney who led the arguments in the first constitutional challenge to the Affordable Care Act, as well as the Voting Rights Act and the Defense of Marriage Act, just to name a few. Defending the health-care law for the second time is U.S. Solicitor General Donald B. Verrilli Jr.
What Are the Businesses Claiming?
Hobby Lobby and Conestoga Wood (and the myriad other for-profit businesses challenging the mandate) are arguing that the birth control benefit violates the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA is a federal law that says the government may not “substantially burden a person’s free exercise of religion,” unless that burden is “necessary to further a compelling government interest” and uses the “least restrictive means” necessary. Conestoga also claims that the mandate violates its religious exercise rights under the First Amendment generally, citing the Citizens United case for precedent.
In plain English, that means the Court will be tasked with answering several distinct questions. The first is the most direct: Do secular, for-profit corporations fit the definition of “individual” under the statute?
But to get to that answer, the Court will have to wade into the much more troubling question of whether individual business owners can transfer their religious beliefs to that of their business in a way that allows businesses to exercise religious rights.
How Did We Get Here?
With the legal challenges to the benefit filed almost as soon as the ink was dry on the ACA, it was only a matter of time before the issue landed before the Supreme Court, especially as federal trial and appellate courts issued conflicting rulings.
In Hobby Lobby, a divided Tenth Circuit Court of Appeals, in a contentious ruling that resulted in the judges writing no less than six separate opinions, ruled that some secular, for-profit corporations are “persons” that can have and exercise their own religious beliefs under the RFRA. The opinion is, frankly, a mess. On the specific question of whether secular, for-profit corporations can also be considered religious persons, the Tenth Circuit split five to three, with the majority holding that corporations that are owned by religiously devout individuals who also control the company’s business dealings fit the definition of a “person” under the statute and are therefore protected by the RFRA. In that sense, the Tenth Circuit’s ruling can be considered narrow—because the ruling did not go so far as to grant First Amendment rights to those businesses.
But just because the Tenth Circuit didn’t find specifically that for-profit corporations can exercise religious rights under the Constitution, the opinion did borrow heavily from that constitutional analysis to justify finding that the business can pursue an RFRA claim. According to the majority, a corporation can absorb as its own the religious views of its owners. When it does so, it then makes it possible to conduct its business in a way that serves as an expression of those religious beliefs.
However, the court in Conestoga Wood found the opposite. In fact, the panel of Third Circuit judges directly disagreed with the court in Hobby Lobby and ruled that “for-profit, secular corporations cannot engage in religious exercise,” even if they are operated by religiously devout owners. The Third Circuit’s opinion went further, dismissing Conestoga’s claims that even if it was not a “person” as defined under the RFRA, it had First Amendment rights independent of the statute. The majority concluded that the First Amendment right to exercise a religious belief is a “personal right” that exists for the benefit of actual human beings and not for artificial, legally constructed “persons” like corporations.
With federal courts in conflict, the Supreme Court gets the final say.
How Will the Supreme Court Rule?
It’s hard to say. The justices have several options: They could find that secular, for-profit businesses are not people under the RFRA and therefore cut off the challenges immediately. Or they could rule broadly that the First Amendment recognizes the religious exercise rights of “corporate persons,” thus setting the stage for a host of religious objections to other federal employment and consumer protection laws.
There’s reason to be concerned that a pro-corporate Roberts Court will see these challenges for what they are: an opportunity to greatly increase corporate protections from government regulation, strike another critical but not immediately lethal blow to health-care reform, and do so under the guise of protecting “religious liberty.”
When Will We Have a Ruling?
The Supreme Court never announces specific dates for rulings, and there’s every reason to think—just as in the last couple of terms with similarly big-ticket cases—that a ruling won’t likely come until the end of the court’s session in June. It could come before, but don’t count on it.
Will This Put an End to the Legal Challenges to the Birth Control Benefit?
Not a chance. Remember the religiously affiliated nonprofit employers who can opt out of the contraception mandate by filling out a form? Those employers are arguing that the process that exempts them from complying with the mandate—in other words, filling out that form—violates their religious rights. Those cases are still pending and not part of Tuesday’s argument or the legal challenges by the for-profit businesses. Given the nature of the fight against the mandate, it’s possible the Roberts Court will weigh in on the merits of those claims as early as next term.
Anything Else I Need to Know?
A couple final thoughts. While there’s been a lot of discussion as to whether the mandate amounts to the government providing women with “free birth control” (it doesn’t), and whether it matters that these businesses are objecting only to a handful of birth control products (again, it doesn’t), there is a solution to this whole mess that doesn’t involve the courts at all. The owners of Hobby Lobby and Conestoga, and any other business owners who have a moral objection to providing their employees with health insurance that covers contraception, have another option—one raised in some of the Hobby Lobby amicus briefs and discussed in last month’s RJ Court Watch podcast. Those business owners could decide to no longer offer employer-based health insurance coverage, and instead choose to pay the fine under the Affordable Care Act. That fine is almost always going to be cheaper than providing health insurance coverage and would free up employees to purchase health insurance on their own through the state or federal exchanges set up under the ACA. Given that many of the employees affected by Hobby Lobby’s refusal are hourly wage-earners, some could even qualify for the subsidies available to help purchase that insurance.
So far, this is a point the Obama administration has been reluctant to lead with, presumably more for political rather than legal reasons, but it will be interesting to see if either the Supreme Court justices or Donald Verrilli make the argument. It drives home the point that the challenges before the Roberts Court reflect as much political opposition to the Affordable Care Act as they do any religiously based objection to providing health insurance coverage for contraception.
One last point: While this particular case got to the Court by challenging the birth control benefit, the companies and others supporting the challenges to it are really opposing the ACA in general. As proof, there’s yet another round of legal challenges to the ACA winding their way through the courts—those challenging the health insurance subsidies available to people in states where conservative lawmakers declined to establish their own online marketplaces for health insurance. Conservatives lost at the lower court, and have naturally appealed. Coincidentally, oral arguments in one of those challenges takes place before the U.S. Court of Appeals for the District of Columbia on Tuesday as well.