Supreme Court Review of Obamacare’s Contraception Mandate Unearths New Debate

A brief history of the high court’s involvement in reproductive rights.

People file out of the Supreme Court after the morning session hearing arguments on the Affordable Care Act on Wednesday, march 28, 2012, the last day of hearings. 
National Journal
Clara Ritger
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Clara Ritger
Nov. 29, 2013, 12:30 a.m.

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.

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