- The Washington Times - Tuesday, November 26, 2013

The Supreme Court on Tuesday set up another showdown over President Obama’s health care law, agreeing to decide whether the government may force for-profit companies to insure birth control as part of their health plans, even if it violates the owners’ religious beliefs.

The justices said they will hear appeals of two related cases — one in which the lower court ruled in favor of an employer, and one in which the lower court upheld the Obama administration’s contraception mandate. The conflicting rulings made it an easy decision for the justices to accept the cases.

“I really don’t think they had any alternative than to take this up,” said Holly Lynch, a health policy and bioethics specialist at Harvard Law School.

The Supreme Court is expected to hear arguments and release its opinion before the end of its term in June. That decision would come just two years after the court, in a divided 5-4 ruling, upheld the law’s individual mandate as constitutional under Congress’ taxing authority.

In all, nearly 40 companies filed suit over the mandate, with particular objections to insuring so-called morning-after contraception pills that they equate with abortion. The company owners say they face the impossible choice of violating their beliefs by complying with the rule or dropping health coverage for their employees.

Fines for flouting the mandate would cripple their businesses, owners said in court filings.

SEE ALSO: Obamacare becomes test of faith for employer over birth control

“This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution,” said David Green, founder and CEO of the Oklahoma City-based Hobby Lobby crafts chain, which won its lower court challenge. “Business owners should not have to choose between violating their faith and violating the law.”

The 41-year-old company describes itself as a “biblically founded business” and is closed on Sundays. The Green family, Hobby Lobby’s owners, also owns the Mardel Christian bookstore chain.

The company in the other case before the Supreme Court is Conestoga Wood Specialties, a Pennsylvania company whose owners are Mennonites. The furniture company lost its appeal of the contraception mandate in a separate lower court ruling.

Clashing values

Supporters of the mandate say contraception use is widespread, but at times unaffordable, for many women. They argue that corporations are not “persons” under the law who can claim religious freedoms and that owners of for-profit companies are not entitled to impose their personal moral beliefs on the diverse array of people they employ.

“As a general matter, our policy is designed to ensure that health care decisions are made between a woman and her doctor,” the White House said in a written statement. “The president believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.”

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In court filings, the plaintiffs frequently cited their First Amendment rights and the 1993 Religious Freedom Restoration Act (RFRA), which is supposed to prohibit laws that unduly burden an individual’s exercise of religion, in support of their clams. Federal appeals judges on the Hobby Lobby case referred to the Supreme Court’s campaign-finance decision in Citizens United to suggest that if companies can exercise free speech, they can claim religious freedoms and prerogatives as well

Ms. Lynch said the outcome is a particularly hard one to predict. But she thinks the court will dispense with the constitutional claims and focus more heavily on religious-freedom protection in RFRA.

While the mandate is certainly a burden, she said it may be a tough sell for the plaintiffs to prove it is a “substantial burden,” because of the distinction between what an employer must do — ensure that an insurer covers the services — and the employees’ role in acquiring and using them.


And yet, she said, the Obama administration’s decision to exempt certain faith-based employers could work against them.

Dozens of religiously-affiliated nonprofits — including hospitals, charities and religious schools such as Washington’s Catholic University — sued over the mandate, too, and the Obama administration tried to accommodate them by allowing some employers to divorce themselves from managing or paying for the coverage. Instead, an insurer or third-party administrator would offer a separate policy to the employee that covers birth control.

Some institutions accepted the administration’s terms, while others decried it as an unacceptable “accounting trick.”

Reproductive rights groups and the American Civil Liberties Union have lined up in support of the administration, saying a decision in favor of employers would mark a major shift in the role of secular companies.

“The right to religious freedom belongs to individuals, not for-profit institutions,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, adding, “The U.S. Supreme Court should use this opportunity to strongly reinforce the bedrock principles of individual liberty on which this nation was founded, and to establish clear limits on the assertion of corporate rights in defiance of federal law and individual rights.”

Meanwhile, Republican critics of Mr. Obama’s health reforms hailed the Supreme Court’s decision to take up the case, rallying around business owners to promote religious liberty and condemn what they view as a green light for abortion-causing drugs.

By taking up two of the challenges, the Supreme Court leaves many companies waiting in the wings to see how it could affect their claims.

“Although we will not get a chance to argue our specific case before the Supreme Court, we are hopeful that the Court will decide in favor of Hobby Lobby and Conestoga Wood Specialties Corp, thus supporting the religious liberty of business owners who oppose the HHS mandate, including our family,” said John Kennedy, president and CEO of the Autocam company in Michigan.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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