By Mary Anne
Nov. 26 --The U.S. Supreme Court Nov. 26 agreed to
consider the validity of the women's preventive services mandate, one of the
most controversial provisions of the Affordable Care Act (Sebelius v. Hobby
Lobby Stores, Inc., U.S., No. 13-354, cert. granted 11/26/13;
Conestoga Wood Specialties Corp. v. Sebelius , U.S., No. 13-356, cert.
The provision, also known as the contraceptive
mandate, 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 their employees.
At issue is the constitutionality of the
mandate, as applied to for-profit, wholly secular corporations whose owners
object to providing contraceptive coverage on religious grounds. The companies
and owners in the two cases granted review argued that the mandate unlawfully
interferes with their exercise of religion.
Courts throughout the country have split on the issue of whether
closely held corporations, either in their own right or through their owners,
may exercise religion, as contemplated by the First Amendment's free exercise
clause. Further, courts haven't agreed on whether corporations may decline to
comply with the mandate, a law of general applicability, on religious grounds.
The two cases in which the court granted review exemplify the disagreement.
The Supreme Court granted a petition for review filed by the Obama
administration in Sebelius v. Hobby Lobby Stores, Inc. The government
sought review of a decision by the full U.S. Court of Appeals for the Tenth
Circuit, which held that two corporations and their owners were likely to
succeed on the merits of their claim that the mandate violates the Religious
Freedom Restoration Act, 42 U.S.C. § 2000bb, by requiring the corporations to
provide insurance coverage for contraceptives in violation of their religious
beliefs or else pay a hefty fine.
RFRA says the government may not place
a “substantial burden” on a person's exercise of religion absent a compelling
government interest and a showing that the action is the least restrictive
means available for promoting that interest. The Tenth Circuit was the first
appeals court to say that a corporation likely is a “person” entitled to assert
rights under RFRA.
In contrast, in Conestoga Wood Specialties v.
Sebelius, the Third Circuit held that the plaintiffs, a Mennonite Christian
family and its woodworking business, were unlikely to succeed on the merits of
their RFRA and First Amendment free exercise claims, given that “for-profit,
secular corporations cannot engage in religious exercise.”
in the two cases, although similar, aren't identical. The Obama administration
in Hobby Lobby asked the court to decide “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.”
question presented by the Conestoga plaintiffs is “[w]hether 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.”
The high court
consolidated the cases for a one-hour oral argument. The date of the argument
hasn't yet been announced.
the Supreme Court's grant of review was positive, although speakers disagreed
on the eventual outcome of the cases.
In a statement by White House
Press Secretary Jay Carney, the administration said it is “confident the
Supreme Court will agree” with its position that the requirement that
corporations include birth control coverage in insurance plans they make
available to their employees is “lawful and essential to women's health.”
The White House declined to comment on the specifics of the case, but said
the mandate is designed to ensure that a woman's health-care decisions are made
between her and her doctor. “The President believes that no one, including the
government or for-profit corporations, should be able to dictate those
decisions to women,” the statement said.
House Speaker John Boehner
(R-Ohio) said in a statement that he is “pleased the Supreme Court has decided
to address this important issue.” Boehner called the mandate “an attack on
religious freedom” and said he is “hopeful” the Supreme Court will find in
favor of the corporations. “Faith-based employers, including Catholic
charities, schools, universities, and hospitals, should not be forced to
provide services that contradict their faith,” he said.
The Supreme Court's announcement also drew the attention of a
number of special interest groups.
For example, the Constitutional
Accountability Center in Washington said: “With courts splitting on this
important question, the Court had to take this case.” CAC added that “the
Justices should firmly reject the assertion by Hobby Lobby and other
corporations that the ACA's contraception mandate is unconstitutional.”
“In more than 225 years since the ratification of the Constitution, the
Court has never held that a secular for-profit corporation has the right to
free exercise of religion under the First Amendment, and it shouldn't start
now,” CAC said.
Hobby Lobby's lead attorney, S. Kyle Duncan, general
counsel of the Becket Fund for Religious Liberty, called the court's action “a
major step” for the companies and their owners, the Green family, “in an
important fight for Americans' religious liberty.” In a Becket Fund statement,
Duncan expressed hope that “the Supreme Court will clarify once and for all
that religious freedom in our country should be protected for family business
owners like the Greens.”
Jay Sekulow, chief counsel of the American
Center for Law & Justice, which represents the plaintiffs in other cases
challenging the mandate, said in a statement that he is “extremely pleased” by
the grant of review. “For the government to mandate that a company or its owner
acquire a health insurance product that violates their religious beliefs is not
only offensive but unconstitutional as well,” Sekulow said. “Such a mandate is
an unconstitutional power grab by the federal government and we're hopeful that
the high court will move to protect the religious freedom of Americans.”
Women's rights and civil rights groups also expressed pleasure at the
court's action, along with a desire that the Supreme Court will declare the
mandate enforceable against the corporations.
Louise Melling, deputy
legal director of the American Civil Liberties Union, said: “[R]eligious
freedom does not include the right to impose your beliefs on others. It does
not mean that businesses can refuse to comply with the law based on their
religious beliefs, particularly where that means discriminating against their
Nancy Northup, chief executive officer of the Center for
Reproductive Rights, said “for-profit companies are no more entitled to deny
women insurance coverage for essential health care than they are to dictate how
any of us can and cannot spend our paychecks.” She added that the court “should
use this opportunity to strongly reinforce the bedrock principles of individual
liberty on which this nation was founded, and to establish clear limits on the
assertion of corporate rights in defiance of federal law and individual
NARAL Pro-Choice America President Ilyse Hogue said she is
“pleased that the Supreme Court will finally lay to rest the question of whether
women's bosses get to decide if we deserve contraceptive coverage.” She added:
“[I]n a country where over 99 percent of women report using birth control at
some point in our lives, bosses have no business imposing their own politics on
their employees' health and decisions.”
Debra L. Ness, president of the
National Partnership for Women& Families, said there is “a tremendous
amount at stake” in these cases. The court's ultimate decision “will have a
profound impact on women's health and well-being,” she said.
To contact the reporter on this story: Mary Anne Pazanowski in Washington at
To contact the editor
responsible for this story: Fabia Mahoney at email@example.com