The Supreme Court's review of private corporations' challenge to the Affordable Care Act's contraception mandate has almost no precedent.
The last time the Court issued a proclamation about contraception was in 1977, when it ruled unconstitutional a New York law prohibiting the sale of birth control to minors.
In the 30-plus years following that decision, cases before the Court have focused primarily on states' abortion restrictions. City of Akron v. Akron Center for Reproductive Health (1983) brought forth an Ohio law instituting a myriad of obstacles for women seeking abortions, including that the woman must receive information about her pregnancy, wait 24 hours after signing the consent form, and have the procedure performed in a hospital, all of which the Court ruled unconstitutional.
Webster v. Reproductive Health Services (1989) was ruled in favor of a Missouri law, which limited the use of state funds for abortions and required women to terminate pregnancies in private facilities except when the pregnancy is life-threatening. Most recently, in 2007, the Court upheld the Bush administration's Partial-Birth Abortion Ban Act of 2003, prohibiting a late-term abortion procedure.
Despite a focus on abortion rights, the Court laid the groundwork for Roe v. Wade — the 1973 landmark case extending the constitutional right to privacy to a woman's decision whether or not to terminate her pregnancy — through a series of decisions on contraception. Griswold v. Connecticut (1965) gave married couples the constitutional right to privacy when making decisions about childbearing and contraceptive use, and Einstadt v. Baird (1972) extended that same right to single individuals.
This time is different. Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius raise the issue of whether a private entity has the right to restrict individuals' access to contraception, an entirely different question from whether the state can legislate such barriers. Brigitte Amiri, a senior staff attorney with the American Civil Liberties Union's Reproductive Freedom Project, said the case is important because of the millions of women who stand to benefit — and already have — from expanded access to contraception.
But it's unlikely that the Court would extend its ruling in these cases beyond the companies that have filed suits, she said, given that the lower courts have also issued limited decisions.
The question then becomes whether companies have religious liberty, and whether that can be imposed on employees.
"The Supreme Court really hasn't decided whether a corporation can have religious liberty to get out from under a federal regulation," Amiri said. "Not in terms of a for-profit corporation. It's really a novel question."
The ACLU will file friend-of-the-court briefs in both of the contraceptive cases, which are expected to appear before the Supreme Court in March.