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.

WASHINGTON, DC - JUNE 28: Obamacare supporters and protesters gather in front of the U.S. Supreme Court to find out the ruling on the Affordable Health Act June 28, 2012 in front of the U.S. Supreme Court in Washington, DC. The Supreme Court has upheld the whole healthcare law of the Obama Administration. (Photo by Alex Wong/Getty Images)
National Journal
Sophie Novack Clara Ritger
Jan. 27, 2014, 9:32 a.m.

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.

RE­LI­GIOUS NON­PROFIT

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.

FOR-PROFIT BUSI­NESS

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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