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How SCOTUS Could Decide the Future of Obamacare’s Contraception Mandate How SCOTUS Could Decide the Future of Obamacare’s Contraception Mand...

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Health Care

How SCOTUS Could Decide the Future of Obamacare’s Contraception Mandate

The Court is entering the debate over whether religious nonprofits and business owners have to provide contraception coverage to women.

(Alex Wong/Getty Images)

January 27, 2014

The Supreme Court's review of private corporations' challenge to the Affordable Care Act's contraception mandate is nearly 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. Since then, the Court has primarily ruled on cases about states' abortion restrictions.

But this case may carry a greater weight because the Court will also have to reconsider its ruling in Citizens United v. the Federal Election Commission, the landmark case that opened up campaign finance laws in a way that allowed corporations to spend unlimited amounts of money to support political campaigns. Should a corporation's First Amendment right to speech extend to religion as well? Should a company be able to assert that right in denying what the Affordable Care Act deemed essential health coverage for women?


That's up for consideration in March. In the meantime, the Court has granted a temporary injunction to a group of Catholic nuns who run a nursing facility and object to covering contraception. The justices haven't ruled on the merits of the case, only that the sisters don't have to pay the penalty while their battle plays out in a lower court. But their decision has already started to color the contraception-mandate debate.


Main plaintiff: Little Sisters of the Poor Home for the Aged, a Catholic-run nursing home based in Denver with affiliated facilities nationwide.

How the mandate applies: In the Affordable Care Act as passed by Congress, religious organizations such as churches were exempt from the contraception requirement, but religiously affiliated organizations such as church-run nursing homes or schools were not. The Obama administration granted a compromise in 2013 that allows religiously affiliated employers to opt out of paying for the contraceptive coverage but gives their employees access to contraceptives through the insurance company or other third party.

Argument against requirement: The Little Sisters would have to sign a self-certification that it is a religious nonprofit with religious objections to providing contraception, so that third-party administrators can arrange coverage. The nuns argue this certification makes them complicit in allowing contraception and therefore violates their religious beliefs.

Fed defense: The Obama administration urged the Supreme Court to reject the injunction, saying the Little Sisters already aren't required to cover contraception. "Applicants have no legal basis to challenge the self-certification requirement or to complain that it involves them in the process of providing contraceptive coverage," responded the administration in a memorandum filed to the Supreme Court. It makes a similar case to the Tenth U.S. Circuit Court of Appeals in Denver, which initially denied the preliminary injunction but has yet to hear the case on its merits.

How SCOTUS got involved: The Denver Appellate Court refused to grant Little Sisters a reprieve, saying it is already exempt from providing contraceptive coverage. District Judge William J. Martinez wrote the plaintiffs' claim "reads too much into the language of the form, which requires only that the individual signing it certify that her organization opposes providing contraceptive coverage." Little Sisters sent an emergency motion to stay Dec. 31 to Justice Sonia Sotomayor, as the justice overseeing the 10th Circuit. She granted the temporary reprieve to the Little Sisters and other religious groups involved in the injunction, just hours before the mandate was scheduled to go into effect Jan. 1.

Implication: If Little Sisters doesn't have to sign the form, then theoretically its employees couldn't get contraception through the insurance company either. A ruling could apply to nearly 500 organizations across the country.

Expected ruling date: Now that the Supreme Court has granted the injunction, with emphasis that it has not ruled on the case merits, the case goes back to the 10th Circuit to be evaluated, with a timeline yet to be determined.


Main players/suing parties: Hobby Lobby, an arts-and-crafts chain store; Conestoga Wood, a Pennsylvania-based woodworking business. The owners of both companies are personally opposed to the contraception requirement on religious grounds.

How the mandate applies: 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, they will face penalty fines.

Argument against requirement: The business owners say the mandate to provide contraception coverage violates their religious freedom. They argue that corporations can hold religious beliefs and liberties that extend from those of the owners.

Fed 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.

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.

Implication: A win for Hobby Lobby and Conestoga would open the contraception requirement up to far more opposition, essentially allowing any business owner to refuse to provide birth control coverage on the grounds of religious freedom. A loss could reopen a Citizens United debate.

Expected ruling date: Oral arguments will occur March 25, with an expected ruling in June.

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