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SCOTUS and Birth Control: What You Need to Know SCOTUS and Birth Control: What You Need to Know

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SCOTUS and Birth Control: What You Need to Know

The Supreme Court has to work through some heavy questions Tuesday morning as it considers Obamacare’s contraception mandate. Here’s what to watch for.

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(PHILIPPE HUGUEN/AFP/Getty Images)

As the Supreme Court prepares to hear oral arguments over Obamacare's contraception mandate, the big question is how far the justices are willing to go.

The cases before the Court on Tuesday clearly threaten the birth-control mandate, but they also have the potential to dramatically reshape the Court's approach to religion and the rights of corporations. And it will be difficult for the Court to reach the ostensibly smaller question of contraception coverage without tackling broader issues of religious liberty.

 

Both sides warn that a ruling against them would have long-lasting repercussions.

The mandate's challengers say the Court would severely undermine basic guarantees of religious freedom—guarantees Congress has explicitly tried to shield from the courts—if it does not allow employers to opt out of the mandate. The Justice Department and its allies, on the other hand, argue that allowing an exemption from the contraception policy would open the door to potentially widespread discrimination.

Lower courts have been all over the place, with fractured decisions that turned on different parts of the complex tangle of issues these cases present. The Supreme Court recently added an extra half hour to Tuesday's arguments, which legal experts say was probably a nod to the sheer volume of thorny questions these cases raise.

 

Here's a quick guide to those questions, the progression the Court will have to work through, and what each side needs to prove in order to win:

Can corporations exercise religion?

The first threshold question here is the biggest issue in either case. The two plaintiffs—Hobby Lobby, an arts-and-crafts retailer, and Conestoga, a cabinet-making company—say the requirement to cover contraception in their employees' health care plans violates their religious liberties. The Justice Department says that's impossible: Corporations don't practice religion and can't sue to defend it.

The companies are citing the Religious Freedom Restoration Act, or RFRA, which says the government must meet a high standard for laws that burden a "person's" free exercise of religion. But RFRA doesn't define a "person." As the lower court in Hobby Lobby's suit noted, the Supreme Court has already said, in effect, that corporations are entitled to other First Amendment protections. But the government says those rights have never been extended to religion.

 

If the justices are inclined to say that corporations can practice religion and file claims under RFRA, it's looking good for Hobby Lobby. But it's also possible—perhaps even likely—that the Court will try to avoid answering this question. So, however this one shakes out, the justices can move on to the next standard …

Can business owners challenge the mandate?

The religious beliefs being exerted here belong to the companies' owners. Hobby Lobby and Conestoga have challenged the contraception mandate on behalf of the corporations as well as their owners—the Green family and the Hahn family, respectively. So if the corporate form can't exercise religion, and therefore doesn't have standing under RFRA, the question becomes whether the owners can seek an exemption from birth-control coverage.

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The lower court in Conestoga's case said no.

"Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga," the court said.

But Hobby Lobby argues in its briefs that separating a person from his or her business could, for example, force a kosher butcher to comply with regulations that require non-kosher practices.

"The government's attempt to drive a wedge between the Greens and their businesses—where only the former have rights and only the latter suffer burdens—is a misguided shell game," Hobby Lobby argued.

If the Supreme Court decides that corporations aren't protected by RFRA and that individuals' religious beliefs don't pass through to their corporations, the analysis stops there and the government has basically won. If the court allows either the corporation or individual to sue, it'll move on to the merits of the contraception mandate.

Does the contraception mandate violate RFRA?

In lower courts, the Justice Department has either successfully stopped the questioning from getting this far, or it has lost.

RFRA prohibits the government from placing a "substantial burden" on religious liberty unless it can prove that the requirement advances a compelling government interest in the least burdensome way possible. Lower courts have agreed that the burden is substantial, as it would require the companies/owners to either violate their religious beliefs or pay millions of dollars in fines.

The Justice Department doesn't dispute that the owners' beliefs are sincere, but says the requirement to cover contraception is part of ensuring that all women, no matter where they work, have equal access to an important health care benefit. Federal law already sets standards for employer-based health care coverage, the government argues, and this is just one more requirement. In other words, a religious exemption would relieve the employer of a burden solely by placing a burden on employees.

A slight wrinkle in this part of the debate: Hobby Lobby only objects to four forms of contraception covered by the mandate: two IUDs, and the pills known as Ella and Plan B. It's willing to cover other FDA-approved contraceptives, including the standard birth-control pill. The challengers have also questioned whether the government's interest can really be so compelling since overtly religious employers are exempt.

If the Court allows companies to claim a religious exemption from all or part of the contraception mandate, obviously, the Obama administration loses. The question will be how the Court got there, and how broadly it ruled on corporate rights along the way.

This article appears in the March 25, 2014 edition of NJ Daily.

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Health Care Edge is one of my top resources."

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