What Is (and Isn’t) at Stake for Obamacare in the Hobby Lobby Case

The contraception mandate will not be axed completely; the Supreme Court has the power to narrow the rule’s reach.

U.S. Supreme Court Chief Justice John Roberts (L) applauds with fellow Justices Anthony Kennedy (2nd from L), Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan (R) prior to President Barack Obama's State of the Union speech on Capitol Hill on January 28, 2014 in Washington, DC. In his fifth State of the Union address, Obama is expected to emphasize on healthcare, economic fairness and new initiatives designed to stimulate the U.S. economy with bipartisan cooperation. 
National Journal
Sam Baker
June 24, 2014, 6:24 p.m.

The Su­preme Court won’t strike down Obama­care’s con­tra­cep­tion man­date, but a rul­ing for the law’s chal­lengers could still render the policy tooth­less for mil­lions of wo­men.

The justices are set to rule any day now in a chal­lenge to the birth-con­trol man­date, and any de­cision against the policy would have ripple ef­fects far bey­ond the two com­pan­ies that filed this law­suit. Just how far, however, de­pends on how broadly the Court rules — and it has plenty of op­tions.

No mat­ter what hap­pens, the Court won’t strike down the en­tire man­date. The two com­pan­ies that brought their chal­lenge to the Su­preme Court — Hobby Lobby and Con­es­toga Wood Spe­cial­ties — haven’t asked the justices to ax the en­tire policy.

The most sweep­ing op­tion is a broad First Amend­ment pro­clam­a­tion that all cor­por­a­tions have a fun­da­ment­al right to ex­er­cise re­li­gion, in this case by re­fus­ing to cov­er birth con­trol in their em­ploy­ees’ health care plans. This out­come would be al­most a se­quel to the Cit­izens United case on cam­paign fin­ance laws and free speech. It would prob­ably open the door for any com­pany to chal­lenge a slew of state or fed­er­al reg­u­la­tions, and would al­low any cor­por­a­tion to avoid the con­tra­cep­tion man­date — po­ten­tially af­fect­ing mil­lions of wo­men.

(Many em­ploy­ers, however, par­tic­u­larly large com­pan­ies, prob­ably wouldn’t want to cut con­tra­cep­tion cov­er­age. It’s a pop­u­lar be­ne­fit and far cheap­er than cov­er­ing a preg­nancy or a baby.)

But a sweep­ing First Amend­ment rul­ing might not be the most likely op­tion, based on the ques­tions Justice An­thony Kennedy asked dur­ing or­al ar­gu­ments and Chief Justice John Roberts’s gen­er­al pref­er­ence for nar­row­er de­cisions. The Court could eas­ily go smal­ler if it sides with Hobby Lobby.

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.

A de­cision lim­ited to closely held cor­por­a­tions could be a way to skirt the out­come lib­er­als fear most — a broad and ex­pli­cit ex­pan­sion of cor­por­ate per­son­hood. But it would still al­low a sig­ni­fic­ant num­ber of em­ploy­ers to ex­clude birth con­trol from their health plans, af­fect­ing an un­told num­ber of fe­male work­ers and their de­pend­ents.

“Look, it’s go­ing to be real. It will be [a] real num­ber,” said Louise Melling, deputy dir­ect­or at the Amer­ic­an Civil Liber­ties Uni­on, which has filed briefs de­fend­ing the birth-con­trol man­date.

Of course, the justices could also rule that the man­date is com­pletely leg­al, in which case noth­ing changes and the world just keeps on spin­ning like it is now.

How did we get here, again?

The Af­ford­able Care Act re­quires em­ploy­ers to in­clude a set of pre­vent­ive ser­vices in their em­ploy­ees’ health care plans, if they of­fer health care be­ne­fits. At the ad­vice of out­side sci­entif­ic ex­perts, the Obama ad­min­is­tra­tion in­cluded FDA-ap­proved con­tra­cept­ives in the list of man­dat­ory pre­vent­ive ser­vices. Em­ploy­ers have to in­clude all FDA-ap­proved con­tra­cept­ives in their health plans without any cost-shar­ing — such as co-pays and de­duct­ibles — for their em­ploy­ees.

The policy was met with a bar­rage of law­suits, some filed by re­li­gious-af­fil­i­ated em­ploy­ers and some by sec­u­lar, for-profit com­pan­ies such as Hobby Lobby, whose own­ers say the man­date vi­ol­ates their re­li­gious liberty un­der the First Amend­ment and a fed­er­al law called the Re­li­gious Free­dom Res­tor­a­tion Act. They say they should be able to opt out of the cov­er­age re­quire­ment, at least for cer­tain products they find mor­ally ob­jec­tion­able.

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