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.

Third-generation contraceptive pills are displayed on January 2, 2013 in Lille, in northern France. France's national drug agency ANSM started consultations with prescribers of third-generation contraception pills on January 2 to try to limit the use of such pills which are subject to complaints, after a French woman attributed her stroke to her contraception pill in mid-December 2012. Some 13,500 complaints were also lodged in the US against Bayer's four-generation Yaz contraceptive pill. 
National Journal
Sam Baker
March 24, 2014, 2:42 p.m.

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.

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.

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