Everything You Wanted to Know About the Contraception Mandate (But Were Afraid to Ask)

The Supreme Court will hear opening arguments in two cases March 25 regarding whether companies must provide birth control to their female employees.

Obamacare supporters celebrating after the Supreme Court ruling on the Affordable Healthcare Act in June 2012 in front of the U.S. Supreme Court.
National Journal
Sophie Novack Clara Ritger
March 13, 2014, 1 a.m.

The Su­preme Court is gear­ing up for its next Obama­care fight, and it’s any­body’s guess as to who will win.

In two weeks, it will weigh wheth­er for-profit com­pan­ies with re­li­gious ob­jec­tions to provid­ing birth con­trol to fe­male em­ploy­ees can opt out of the Af­ford­able Care Act’s con­tra­cep­tion man­date.

Here’s a break­down of what to ex­pect:

Main play­ers/su­ing parties: Hobby Lobby, an arts-and-crafts chain store that provides in­sur­ance cov­er­age for more than 13,000 people; and Con­es­toga Wood, a Pennsylvania-based wood­work­ing busi­ness that cur­rently cov­ers more than 950. The own­ers of both com­pan­ies are per­son­ally op­posed to the con­tra­cep­tion re­quire­ment on re­li­gious grounds.

How the man­date ap­plies: The ACA re­quires em­ploy­ers to in­clude con­tra­cept­ive cov­er­age in their health plans at no ad­di­tion­al cost. Re­li­gious or­gan­iz­a­tions such as churches, syn­agogues, and mosques are ex­empt from the man­date and their em­ploy­ees are not en­titled to birth-con­trol cov­er­age. Re­li­giously-af­fil­i­ated or­gan­iz­a­tions such as church-run nurs­ing homes and schools are also not sub­ject to the pen­alty, but em­ploy­ees must have ac­cess to con­tra­cept­ive cov­er­age provided by in­sur­ance com­pan­ies or oth­er third parties at no cost.

However, Hobby Lobby, Con­es­toga, and oth­er for-profit busi­nesses are sub­ject to the man­date pen­alty be­cause the or­gan­iz­a­tions are not re­li­giously af­fil­i­ated. If the own­ers do not in­clude con­tra­cep­tion cov­er­age in their em­ploy­ee in­sur­ance plans, then they have to pay fines.

Ar­gu­ment against re­quire­ment: The for-profit busi­ness own­ers say the man­date to provide con­tra­cep­tion cov­er­age im­poses a “sub­stan­tial bur­den” on their re­li­gious free­dom un­der the Re­li­gious Free­dom Res­tor­a­tion Act of 1993. RFRA says that un­less there is a com­pel­ling gov­ern­ment in­terest, Con­gress can­not make laws that “sub­stan­tially bur­den a per­son’s free ex­er­cise of their re­li­gion.” The busi­ness own­ers ar­gue that cor­por­a­tions can hold re­li­gious be­liefs and liber­ties that ex­tend from those of the own­ers.

Al­though the com­pan­ies could forgo health cov­er­age for their em­ploy­ees al­to­geth­er and pay a pen­alty of $2,000 per em­ploy­ee per year — a total of about $26 mil­lion per year for Hobby Lobby and $1.9 mil­lion per year for Con­es­toga — the own­ers say that they have a re­li­gious ob­lig­a­tion to pro­tect their em­ploy­ees by provid­ing health cov­er­age. At the same time, they say they have a re­li­gious ob­lig­a­tion not to provide cer­tain con­tra­cept­ives. The pen­alty for provid­ing in­sur­ance that ex­cludes some forms of con­tra­cep­tion would ac­tu­ally be high­er — $100 per day per en­rollee, at a grand total of al­most $475 mil­lion per year for Hobby Lobby and about $34.6 mil­lion per year for Con­es­toga.

The gov­ern­ment’s de­fense: The Justice De­part­ment says for-profit cor­por­a­tions that don’t serve a re­li­gious mis­sion can­not claim to have re­li­gious be­liefs — so the law can’t vi­ol­ate those be­liefs; and the be­liefs of a com­pany’s own­ers don’t “pass through” to the cor­por­a­tion it­self. To de­fend the man­date un­der RFRA, the gov­ern­ment will ar­gue that con­tra­cep­tion is a cru­cial ele­ment of health cov­er­age and wo­men’s health and a “com­pel­ling reas­on” for the em­ploy­er re­quire­ment, and that the pen­alty is the “least re­strict­ive means” to en­sure it is avail­able.

How SCOTUS got in­volved: In June, the 10th Cir­cuit Court of Ap­peals ruled that Hobby Lobby and its sub­si­di­ary Mar­del, a Chris­ti­an book­store chain, could chal­lenge the con­tra­cep­tion re­quire­ment. The judges cited the Su­preme Court’s Cit­izens United rul­ing, say­ing cor­por­a­tions can ex­er­cise First Amend­ment rights, in­clud­ing re­li­gious liberty.

Con­es­toga’s case was met with the op­pos­ite rul­ing. The 3rd Cir­cuit Court of Ap­peals dis­missed the com­pany’s case, say­ing it could not sue be­cause a for-profit com­pany could not ex­er­cise re­li­gious views. The Obama ad­min­is­tra­tion pressed the Su­preme Court to take up the Hobby Lobby case, but not Con­es­toga’s. The Court de­cided on Nov. 26 to hear both cases to­geth­er.

Im­plic­a­tions: A win for Hobby Lobby and Con­es­toga would lim­it wo­men’s ac­cess to con­tra­cep­tion, es­sen­tially al­low­ing any busi­ness own­er to re­fuse to provide birth-con­trol cov­er­age on the grounds of re­li­gious free­dom. It could also, however, cre­ate a slip­pery slope of ex­cep­tions bey­ond con­tra­cep­tion cov­er­age. A rul­ing in fa­vor of the cor­por­a­tions could al­low com­pan­ies to take re­li­gious ob­jec­tion to oth­er health ser­vices, such as vac­cin­a­tions, blood trans­fu­sions, and even in­sur­ance over­all. Crit­ics worry it could also have far-reach­ing im­pacts on civil rights laws, en­abling com­pan­ies, hous­ing au­thor­it­ies, and oth­er or­gan­iz­a­tions to use re­li­gious free­dom to jus­ti­fy dis­crim­in­a­tion on the basis of any­thing from race to sexu­al ori­ent­a­tion. A loss for the cor­por­a­tions could re­open a Cit­izens United de­bate, as the court’s rul­ing would call in­to ques­tion why com­pan­ies have some First Amend­ment rights but not all.

Key dates: Or­al ar­gu­ments will oc­cur March 25, with an ex­pec­ted rul­ing in June, be­fore the end of the Court’s ses­sion.

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