Supreme Court poised to rule on O-Care’s ‘birth control mandate’

Greg Nash

The boundaries of religious freedom hang in the balance as the Supreme Court prepares to close out its term with a decision on the Affordable Care Act’s “birth control mandate.”

Monday’s ruling, the most closely watched of the season, decides round two for ObamaCare at the high court, and will be the second time the justices will close their term with a ruling on President Obama's signature law.

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The stakes are high. A ruling against the administration could undermine the statute’s provision requiring companies to offer contraceptive services to workers as part of their insurance coverage.  

It would peel away a significant portion of the mandate, potentially affecting preventive health coverage for millions of women, the government and backers of the law say.

Perhaps even more important, they contend, are the ramifications of a finding that corporations could be exempt from federal statutes on grounds that they have religious objections.

“This really is about whether or not employers based on religious views can pick and choose which federal laws to follow and not follow,” Kathleen Sebelius, who guided the law’s rollout through rough political waters during her turbulent tenure as Obama’s health secretary, said Friday.

Critics of the provision are on equally sharp tenterhooks in advance of the ruling, which will strike at the very root of the Constitution’s First Amendment.

The consolidated case, generally known as Sebelius v. Hobby Lobby, centers on challenges to the contraception mandate brought by a pair of companies: the Hobby Lobby craft store chain and Conestoga Woods Specialties, a Pennsylvania-based cabinetmaker.

The firms and like-minded critics of the mandate say it violates both the First Amendment’s free exercise clause and the 1993 Religious Freedom Restoration Act (RFRA), which provides that, “government shall not substantially burden a person’s exercise of religion.”

That statue trumps the contraception rule, argues Noel J. Francisco, a partner at Jones Day, who has represented business interests before the Supreme Court and chairs the firm’s government regulations practice.

“That regulation, like all regulations is subordinate to RFRA, which is a law,” he said, asserting that Congress approved the measure “to protect against this kind of thing.”

The mandate generally requires companies to cover 20 FDA-approved contraceptive methods to workers at no cost. The services run the gamut from condoms and oral contraceptives to intrauterine devices (IUD) and surgical sterilization.

Hobby Lobby and Conestoga have no objections to covering the majority of the methods, which prevent pregnancy by blocking egg fertilization. However, they take exception with the Plan B or “morning-after” pill and the Ella, also known as the “week-after pill,” which block pregnancy by preventing the implantation of a fertilized egg in the uterus.

If they violate the regulations, the companies could face steep $100-a-day penalties for each employee. For Hobby Lobby, employer of some 13,000 employees, that works out to almost $475 million a year.

The far smaller Conestoga, with 950 workers, would face annual penalties approaching $35 million.

Though the owners might harbor religious objections, the companies must abide by the regulations or pay the fines like everyone else, those on the government’s side contend.

“They don’t want to comply with a valid, secular law that applies to everyone,” said Eric Segall a law professor at Georgia State University. “You don’t get to not follow the law because of conscience.”

That is precisely the question before the court: whether the free expression clause should be extended to corporations.

During oral arguments this spring, the justices appeared sharply divided.

The bench’s conservative wing appeared receptive to the companies’ challenge.

“There is not a single case which says that a for-profit enterprise cannot make a freedom of religion claim,” Scalia charged.

The court's liberals, meanwhile, came to the administration’s defense, with Justice Elena Kagan arguing that Congress purposely granted the government “statutory entitlement” to ensure contraceptive coverage for women.

During arguments Tuesday, the court’s liberal wing rushed to the government’s defense — arguing the mandate is firmly grounded in the landmark health law

“And when the employer says, ‘No, I don't want to give that,’ that woman is quite directly, quite tangibly harmed,” Kagan said.

Justice Anthony Kennedy, a frequent swing vote who could be again in Hobby Lobby, appeared to have problems with arguments brought by both sides in the dispute, leaving court watchers and handicappers with no real consensus about where the court would land.

Even if the conservatives prevail, the mandate won’t be struck down in its entirety. But the weakened provision would likely be still be subject to additional attacks from cases in the pipeline, including one brought by an order of nuns who argue that religious nonprofits should be exempt.

The court, many have suggested, could rule in favor of Hobby Lobby and Conestoga but limit the exemption to them and other closely held companies with religious objections.

But even such a narrow ruling could lead to an explosion of lawsuits from private firms claiming all religious exemptions from other laws on the books, the liberal justices and supporters of the mandate argue.

Companies, they reason, could claim religious objections to requirements they serve minorities or offer employment to women.

Paul M. Smith, a partner at the firm Jenner & Block, said there are already numerous cases testing the bounds of anti-discrimination laws in the name of religious freedom now working their way through the courts.

A Hobby Lobby victory, he said, “will provide more momentum in that direction.”

Monday’s decision comes two years, nearly to the day, after the court narrowly upheld the constitutionality of the Affordable Care Act’s individual mandate.