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

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Health Care

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.

Supporters celebrate after Obamacare was upheld by the Supreme Court in 2012.(Alex Wong/Getty Images)

March 13, 2014

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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