Supreme Court Could Act This Week on Contraception Challenges


On Tuesday, the U.S. Supreme Court will meet in private conference to consider four different challenges to the birth control benefit in the Affordable Care Act. Should the Court decide to take up one or all of the challenges, the case(s) would be heard this term, just two years after the Roberts Court upheld the overall constitutionality of the health-care reform law.

Three of the legal challenges center on whether secular, for-profit corporations have religious rights, and if so, whether requiring businesses provide insurance coverage to employees that includes contraceptives violates those religious rights. But the cases and legal issues before the Supreme Court are slightly different from one another, which could significantly affect the scope of any action the Supreme Court takes.

For example, the legal issue in Hobby Lobby is a narrow one, which is likely one reason the Obama administration has asked the Roberts Court to step in on this case but to wait on the others. Specifically, the issue in Hobby Lobby is whether the Religious Freedom Restoration Act (RFRA) allows for-profit businesses to avoid complying with the birth control benefit. That is a much narrower issue than, for example, in the Consetoga Wood case, in which a Mennonite family-owned furniture manufacturing business wants the Court to answer whether the birth control benefit violates both the RFRA and the company’s rights under the First Amendment free exercise clause. Similarly, plaintiffs in the Autocam case have asked the Supreme Court to review a circuit split that a corporation is not a “person” under the RFRA or the First Amendment and, therefore, does not have standing to challenge the law’s coverage requirement. The Roberts Court could decide to take all, some, or none of the challenges.

Among those arguing on behalf of corporate religious rights is Paul Clement, a seasoned Supreme Court litigator who led the right’s attack on the Affordable Care Act, affirmative action, and the Voting Rights Act. Clement represents Hobby Lobby, a national craft store chain and one of the first businesses to successfully challenge the mandate. Both Hobby Lobby and the Obama administration have asked the Supreme Court to take up this case, significantly increasing the chance that if the Court steps in this term, it would do so in this case.

In addition to the for-profit challenges, one nonprofit has asked for Supreme Court review of its challenge to the health-care law. Liberty University filed a petition asking the Supreme Court to review the individual and employer mandate, arguing Congress did not have the power to pass the mandate and that the mandate violates both Liberty University’s First Amendment religious rights and its rights under the RFRA. Last year, the Supreme Court revived the university’s challenge after a federal appeals court initially ruled the school’s lawsuit had been filed prematurely.

The Supreme Court could announce its decision on granting review of any of the challenges as early as end-of-day Tuesday.

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  • Lynnsey

    The HL case *should* be a slam dunk. HL is a corporation, which means that the Green family has, to their benefit, separated themselves legally and financially from the company. If you aren’t the company when it’s time to pay your taxes and protect yourself from lawsuits, then you aren’t the company when it’s time to try and inflict your Bronze Age superstitions about sex on your employees.

    Further and as I’ve asked before, how far does HL get to go? Do they get to fire employees who use birth control? How about firing workers who get pregnant out of wedlock? If they can’t fire them, can they deny those women coverage for prenatal care or do they just get to stone the sluts to death? I’m sure they have a system in place to ensure that drugs for erectile dysfunction are only being used by married men with their wives for procreative sex, right?

    The other cases help illustrate the need to get access to healthcare disentangled from if and what kind of employment you have and whether you can manage to keep it when you do actually get sick/hurt. I think it’s telling that no one talks about any of the myriad other things that I might find morally reprehensible enough to deny my employees related health care access for. This conversation only seems to pertain to contraception…

    • painkills2

      Now you’ve gone and done it. You’ve given Hobby Lobby the idea to bring back the stoning of women. And I had heard that they were going to be more lenient and just force shotgun weddings on their single pregnant employees. Of course they were also contemplating preventative care in the form of a required monthly hymen exam and lie detector test for every single woman (which would have been physically more uncomfortable but in the long term, much healthier). And since married women never cheat, they would be exempt. Yeah, sounds like a dream job to me. (Not.)

      What would a Hobby Lobby health insurance plan really look like? Well, no coverage for STD or HIV testing or treatments. Prenatal care only if married, and married within the religion Hobby Lobby endorses. Of course nothing for transgender people or any healthcare perceived to be for gay people. Did you break your hip while engaged in unsanctioned sex? Not covered. Need addiction treatment? Not covered. Let’s see, what else…

  • Joe.02

    It is done. I predict a closely divided opinion and/or something like the DC ruling where reproductive liberty loses, but in a somewhat narrow way. We shall see.