3 Ways the Supreme Court Could Rule on Contraception

The U.S. flag flies in front of the West Front of the Supreme Court Building on August 7, 2009 in Washington, D.C. Judge Sonia Sotomayor will be sworn in as the 111th justice of the Supreme Court on Saturday.
National Journal
Sam Baker
March 23, 2014, 7:56 a.m.

The leg­al battle over Obama­care’s con­tra­cep­tion man­date is es­sen­tially tied as it heads in­to Tues­day’s Su­preme Court ar­gu­ments. Both sides have suffered some bad losses in lower courts, and the weak­nesses that hurt them be­fore could spell trouble again on Tues­day.

The Court has com­bined two cases on the birth-con­trol man­date — one the gov­ern­ment won, and one it lost. Both chal­lenges were filed by for-profit com­pan­ies that say the man­date vi­ol­ates the re­li­gious be­liefs of their own­ers.

Five fed­er­al ap­peals courts have heard such chal­lenges, and their rul­ings are a mess of con­flicts. The courts not only dis­agree with each oth­er, they’re also di­vided in­tern­ally. As judges agreed on one ques­tion but dis­agreed on an­oth­er, the 10th Cir­cuit Court of Ap­peals cobbled to­geth­er four dif­fer­ent ma­jor­it­ies in one rul­ing against the man­date. (That case, filed by Hobby Lobby, is one of the chal­lenges be­fore the Su­preme Court this week.)

In oth­er words, there are good reas­ons why each side might lose at the Su­preme Court.

Why the Obama ad­min­is­tra­tion could lose

Keep in mind the flow of the ar­gu­ments in this case. Two for-profit com­pan­ies have sued, ar­guing that the con­tra­cep­tion man­date vi­ol­ates their re­li­gious free­dom. So there are two ques­tions: Do these cor­por­a­tions (or their own­ers) have the right to sue? And if they do, does the man­date vi­ol­ate their re­li­gious free­dom?

The Justice De­part­ment has won a few cases on the first ques­tion, but nev­er on the second.

When the Justice De­part­ment has lost on the threshold ques­tion of cor­por­ate rights, it has al­ways lost on the un­der­ly­ing chal­lenge to the con­tra­cep­tion man­date. Any time an ap­peals court de­cided that a com­pany or its own­er could ex­er­cise re­li­gion, it went on to find that the birth-con­trol man­date at least seems likely to vi­ol­ate that re­li­gious free­dom. And so the only way the ad­min­is­tra­tion has ever won on the man­date it­self is to close the door be­fore a court even gets there — which could prove hard to do be­fore the Su­preme Court.

Why the chal­lengers could lose

The biggest hurdle for the man­date’s chal­lengers is the mar­quee ques­tion of wheth­er they can prac­tice a re­li­gion. In one of the cases be­fore the Su­preme Court this week, a cab­in­et-mak­ing com­pany called Con­es­toga chal­lenged the man­date as an af­front to the be­liefs of its own­ers, the Hahn fam­ily. The 3rd Cir­cuit Court of Ap­peals, sid­ing with the Justice De­part­ment, said the cor­por­a­tion and the people who own it are two dif­fer­ent en­tit­ies.

“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 wrote.

An­oth­er way the ad­min­is­tra­tion could lose, but not as badly

Chief Justice John Roberts likes to keep the high court’s rul­ings as nar­row as pos­sible on most big is­sues. He looks for ways to min­im­ize the Court’s foot­print by avoid­ing the biggest ques­tion — which, in this case, would be wheth­er cor­por­a­tions are pro­tec­ted by the First Amend­ment’s “free ex­er­cise” clause.

There’s a reas­on­ably clear way for him to do that here: Avoid the ques­tion of wheth­er cor­por­a­tions are people, and fo­cus on wheth­er — in these spe­cif­ic cases — people are their cor­por­a­tions.

Both Hobby Lobby and Con­es­toga are closely held com­pan­ies, con­trolled en­tirely or al­most en­tirely by their own­ers. The liber­tari­an Cato In­sti­tute sug­ges­ted in a sup­port­ing brief that be­cause these two com­pan­ies are con­trolled by their own­ers, the Court could rule in their fa­vor without set­ting a broad­er pre­ced­ent that cor­por­a­tions in gen­er­al can prac­tice re­li­gion.

“Wheth­er a for-profit cor­por­a­tion can ex­er­cise re­li­gion is an in­ter­est­ing the­or­et­ic­al ques­tion. But there is no need to ad­dress that the­or­et­ic­al ques­tion when le­gis­la­tion reg­u­lat­ing a cor­por­a­tion also re­stricts the re­li­gious liberty of the in­di­vidu­als who foun­ded, own, and dir­ect the af­fairs of that cor­por­a­tion,” Cato wrote in its brief.

Such a rul­ing wouldn’t be pre­cisely down the middle — it would open up more ex­emp­tions to the con­tra­cep­tion man­date, and the Justice De­part­ment is adam­ant that cor­por­a­tions and their stock­hold­ers must re­main sep­ar­ate leg­al en­tit­ies. But it could be a way to skirt the out­come lib­er­als fear most — a broad and ex­pli­cit ex­pan­sion of cor­por­ate per­son­hood — if the Court’s con­ser­vat­ive ma­jor­ity ap­pears to be lean­ing against the birth-con­trol man­date.

The two cases are Se­beli­us v. Hobby Lobby Stores and Con­es­toga Wood Spe­cial­ties Corp. v. Se­beli­us.

Why the Obama administration could lose

Keep in mind the flow of the ar­gu­ments in this case. Two for-profit com­pan­ies have sued, ar­guing that the con­tra­cep­tion man­date vi­ol­ates their re­li­gious free­dom. So there are two ques­tions: Do these cor­por­a­tions (or their own­ers) have the right to sue? And if they do, does the man­date vi­ol­ate their re­li­gious free­dom?

The Justice De­part­ment has won a few cases on the first ques­tion, but nev­er on the second.

When the Justice De­part­ment has lost on the threshold ques­tion of cor­por­ate rights, it has al­ways lost on the un­der­ly­ing chal­lenge to the con­tra­cep­tion man­date. Any time an ap­peals court de­cided that a com­pany or its own­er could ex­er­cise re­li­gion, it went on to find that the birth-con­trol man­date at least seems likely to vi­ol­ate that re­li­gious free­dom. And so the only way the ad­min­is­tra­tion has ever won on the man­date it­self is to close the door be­fore a court even gets there — which could prove hard to do be­fore the Su­preme Court.

Why the challengers could lose

The biggest hurdle for the man­date’s chal­lengers is the mar­quee ques­tion of wheth­er they can prac­tice a re­li­gion. In one of the cases be­fore the Su­preme Court this week, a cab­in­et-mak­ing com­pany called Con­es­toga chal­lenged the man­date as an af­front to the be­liefs of its own­ers, the Hahn fam­ily. The 3rd Cir­cuit Court of Ap­peals, sid­ing with the Justice De­part­ment, said the cor­por­a­tion and the people who own it are two dif­fer­ent en­tit­ies.

“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 wrote.

Another way the administration could lose, but not as badly

Chief Justice John Roberts likes to keep the high court’s rul­ings as nar­row as pos­sible on most big is­sues. He looks for ways to min­im­ize the Court’s foot­print by avoid­ing the biggest ques­tion — which, in this case, would be wheth­er cor­por­a­tions are pro­tec­ted by the First Amend­ment’s “free ex­er­cise” clause.

There’s a reas­on­ably clear way for him to do that here: Avoid the ques­tion of wheth­er cor­por­a­tions are people, and fo­cus on wheth­er — in these spe­cif­ic cases — people are their cor­por­a­tions.

Both Hobby Lobby and Con­es­toga are closely held com­pan­ies, con­trolled en­tirely or al­most en­tirely by their own­ers. The liber­tari­an Cato In­sti­tute sug­ges­ted in a sup­port­ing brief that be­cause these two com­pan­ies are con­trolled by their own­ers, the Court could rule in their fa­vor without set­ting a broad­er pre­ced­ent that cor­por­a­tions in gen­er­al can prac­tice re­li­gion.

“Wheth­er a for-profit cor­por­a­tion can ex­er­cise re­li­gion is an in­ter­est­ing the­or­et­ic­al ques­tion. But there is no need to ad­dress that the­or­et­ic­al ques­tion when le­gis­la­tion reg­u­lat­ing a cor­por­a­tion also re­stricts the re­li­gious liberty of the in­di­vidu­als who foun­ded, own, and dir­ect the af­fairs of that cor­por­a­tion,” Cato wrote in its brief.

Such a rul­ing wouldn’t be pre­cisely down the middle — it would open up more ex­emp­tions to the con­tra­cep­tion man­date, and the Justice De­part­ment is adam­ant that cor­por­a­tions and their stock­hold­ers must re­main sep­ar­ate leg­al en­tit­ies. But it could be a way to skirt the out­come lib­er­als fear most — a broad and ex­pli­cit ex­pan­sion of cor­por­ate per­son­hood — if the Court’s con­ser­vat­ive ma­jor­ity ap­pears to be lean­ing against the birth-con­trol man­date.

The two cases are Se­beli­us v. Hobby Lobby Stores and Con­es­toga Wood Spe­cial­ties Corp. v. Se­beli­us.

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