3 Ways the Supreme Court Could Rule on Contraception

National Journal
Sam Baker
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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.

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