- The Washington Times - Wednesday, December 25, 2013

When the Supreme Court next year decides whether the Obama administration can force for-profit companies to insure birth control, the punditry around abortion or the “war on women” will be overshadowed by legal precedent and acts by Congress that weigh religious liberty against government mandates, legal scholars say.

How the nine justices will rule on the contraception mandate — an outgrowth of President Obama’s signature health care law — is anyone’s guess, after federal appeals courts across the country could not agree on whether the government could force larger employers to insure a range of contraceptives as part of their health care plans.

“It’s a difficult case,” said Trevor Burrus, a research fellow at the Cato Institute’s Center for Constitutional Studies.

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It also probably will not matter that three of the court’s justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — are female, even if the case involves the coverage of contraceptive services that are used by women, said Holly Lynch, a health care policy and bioethics specialist at Harvard Law School.

“I think this will really be an issue of religious freedom,” she said, “divorced as much as possible from the specific content of the objectionable requirement.”

The final say

The idea that the Supreme Court would have the final say over Mr. Obama’s contraception mandate was never in doubt. In the wake of the Affordable Care Act’s enactment in 2010, conservative lawmakers lambasted the contraceptive move as a serious affront to devout business owners in their districts.

Dozens of businesses sued, saying they run their companies in line with deeply held beliefs and that they particularly object to insuring morning-after pills, which they equate with abortion. They said that if the mandate stood, their firms would have to choose between violating their faith or dropping health care coverage for their employees.

The 10th U.S. Circuit Court of Appeals in Denver eventually said Hobby Lobby — a family-owned chain of craft stores based in Oklahoma — had a legitimate case against the administrative mandate. Some circuit courts agreed, but others didn’t.

In November, the Supreme Court said it would consider challenges from Hobby Lobby and Conestoga Wood Specialties, a Pennsylvania-based firm whose Mennonite owners did not win their challenge at the circuit court level.

It is difficult to assess each justice’s position on the question because it “really hasn’t come before the court before,” said Randy Barnett, a professor at the Georgetown Law Center.

Instead, it may be useful to look at how the high court has applied a key law aimed at protecting religious liberties, or other legal precedents at play.

Clues in case law?

Analysts pointed to a pair of Supreme Court decisions that came down before and after Congress passed the Religious Freedom and Restoration Act, a 1993 law aimed at preventing burdens on the right to exercise religious beliefs.

Congress passed the legislation, which figures prominently in lawsuits against the contraception mandate, in part as a response to the Supreme Court’s decision in Employment Division v. Smith. In that case, the state of Oregon refused to provide unemployment benefits to American Indians who were fired from a rehabilitation clinic after testing positive for the key ingredient in peyote.

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