The Supreme Court Will Hear Landmark Case on Contraception

On Tuesday, the Supreme Court granted certiorari to two cases, Sebelius v. Hobby Lobby Stores Inc and Conestoga Wood Specialties Corp v. Sebelius. These cases, to be heard as one case by the Court, symbolize a new frontier in the realm of free exercise of religion and personal health choices. These cases were born out of Department of Health and Human Services rule regarding contraception coverage under the new health care law. It is hard not to associate the Patient Protection and Affordable Care Act with some level of controversy. Whether it was over the premise of the bill itself, the Medicaid expansion, implementation and the website, this bill has caused spirited debate over the role of the government in the lives of the citizens it is formed to protect. Coverage for contraceptive preventive care is another locus of controversy. The current questions seem removed from the broader issues of the ACA on its own, but focus on a seeming dichotomy between religious liberty and access to contraception. Under Department of Health and Human Services rules for the ACA, all companies and organizations are required to cover contraception under their health insurance plans. Pervasively sectarian religious organizations, like churches, synagogues, or mosques are fully exempt from covering contraception if their religion would lead them to oppose the use of birth control. Non-profit organizations that are religiously affiliated are accommodated, meaning they do not have to provide contraception under the health insurance plan they offer to their employees. However, a third party insurer will then contact the employee and a plan for contraception coverage can be worked out between them without the employer’s knowledge. The Hobby Lobby and Conestoga cases are two of five for-profit cases that have made their way through the Circuit Court system. The owners of all the for-profit companies involved in these cases have personal religious reasons for opposing contraception, and therefore do not want to provide it for their employees. They have filed under the Religious Freedom Restoration Act, a bill who’s 20^th Anniversary we celebrated earlier this month. RFRA was a landmark bill that implemented protections for individuals against the government if there were laws or rules that might unreasonably and substantially burden free exercise of religion. The justices will determine whether a corporation can count as a “person” under RFRA, whether the contraception mandate is a substantial burden of the person’s free exercise of religion, whether the government has a compelling interest in implementing such a law, and whether it is done in the least restrictive means. It’s complicated jurisprudentially, but could have important and long-reaching implications. If the Court decides that corporations can exercise religion, and can use that exercise to make decisions about health insurance, an employer could choose not cover other health needs his or her religion opposes. The Court will likely hear argument in March, with a decision in June. This is one of the most important cases in a long time on reproductive rights, and will be important to follow as it develops.