SCOTUS to hear key contraception cases

A politically charged issue pitting claims of religious freedom against women’s rights heads for a legal test at the Supreme Court on Tuesday, as the justices hear oral arguments in two cases brought by business owners claiming that the contraception coverage requirement under the Affordable Care Act infringes on religious liberty.

The cases brought by for-profit companies and their owners are just two of nearly four dozen similar cases, all involving Christian proprietors who claim their opposition to contraception and abortion bars them from complying with that rule in the ACA, President Barack Obama’s signature health care reform legislation.

The rule, finalized in 2012, requires that employers that provide a group health insurance plan for their employees cover, without co-pays, 20 specified contraceptive drugs and devices.

In both cases before the court, Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Inc. v. Sebelius, the business owners, who are evangelical Christians and Mennonites, respectively, do not object to all contraceptive methods. Rather, they object to the emergency contraceptives Plan B and ella and to intrauterine devices (IUDs), which they claim can cause abortions. The medical establishment refutes that claim.

"At stake in this lawsuit is whether corporate chief executives are entitled to impose their religious beliefs on their employees and deny important federal rights to those employees," wrote David H. Gans, director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center in a recent op-ed in The Los Angeles Times.

The lawsuits are the most closely watched religious freedom cases in decades and will test the boundaries of the 1993 Religious Freedom Restoration Act (RFRA). When the Department of Health and Human Services first proposed the contraceptive coverage regulation, in 2011, it included an exemption for houses of worship. After objections from the U.S. Conference of Catholic Bishops and conservative evangelicals, the administration included an accommodation for religious nonprofits, under which the responsibility of arranging the coverage shifts to the insurance carrier rather than the employer.

Dozens of other nonprofits have sued, charging the accommodation is insufficient and that they too are entitled to an exemption. Those cases have not yet reached the Supreme Court. The cases the court will hear on Tuesday were brought by for-profit corporations asserting they, too, are entitled an exemption — a novel claim they say is bolstered by the Supreme Court’s 2010 decision in Citizens United v. FEC, holding that corporate political expenditures are protected speech under the First Amendment.

In the Conestoga Wood case, the 3rd Circuit Court of Appeals rejected the company’s claims. But the 10th Circuit, in Hobby Lobby, held that the legal protection of the owners’ religious exercise also applied to their company. “A religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values,” the majority wrote. “As a court, we do not see how we can distinguish this form of evangelism from any other.”

Despite support for the RFRA on both sides of the aisle, the contraception coverage cases have been at the center of pitched partisan battles over what Democrats call the Republican war on women and what Republicans label a Democratic war on religion. Both sides see the outcome as a crucial test of how the courts will protect their interests, with potentially wide-ranging effects.

On the conservative side is the assertion that the strong arm of government is dictating how citizens live their religion, regardless of whether these beliefs are manifested in church or as part of commercial activity. On the other is the contention that religious citizens, particularly those who employ and serve the general public, not just co-religionists, are imposing their religious beliefs on others and seeking to deprive them of benefits to which they are legally entitled.

The outcome of the cases could play a role in state legislative efforts to extend, under the guise of religious freedom, the ability of business owners to turn away customers because of their opposition to homosexuality and same-sex marriage. Should the court rule in Hobby Lobby’s favor, there could be calls for Congress to revisit the RFRA.

In particular, the owners of Hobby Lobby — a multibillion dollar company with 500 stores and 13,000 full-time employees nationwide — have become the face of the for-profit challenges. Hobby Lobby’s owners, the Green family, are venerated among conservative Christian groups for their “bold stand for religious freedom,” in the words of Concerned Women for America.

The lawsuits have provoked charges that their religious freedom claims are far too attenuated to amount to a “substantial burden” and are being used to trump a regulation intended to promote women’s health and gender equality more broadly. What’s more, as the government argues in the case, it has a compelling interest in promoting women’s health and gender equality by making it possible for women to afford to control when and whether to have children.

“Simply put, it’s discrimination against women to restrict coverage of birth control when all medications are covered for men,” said Marcia Greenberger, a co-president of the National Women’s Law Center, which opposes Hobby Lobby’s position.

IUDs, for example, opposed by Hobby Lobby and Conestoga Wood, are one of the most effective methods of preventing pregnancy, according to the Guttmacher Institute. The pro-choice research institute found in a study released this year that IUDs have been responsible for the declining abortion rate in the U.S. But IUDs are also among the most expensive contraceptives, costing up to $1,000 without insurance.

To illustrate the point about meddling bosses, the women’s rights group UltraViolet released a video that uses puppets to depict the intrusion of a woman’s boss and a judge into her use of birth control pills and into her bedroom. “Don’t forget, Liz,” the judge says to the woman while sitting in her bed, “it’s not about your rights or your health. It’s about your boss’ personal freedom.”

Republican politicians frequently cite the contraception coverage requirement as evidence of a government — and an Obama administration — hostile to religious freedom. While running for president, Mitt Romney accused the Obama administration of “using ‘Obamacare’ to impose a secular vision on Americans who believe that they should not have their religious freedom taken away.”

Republican Sens. Ted Cruz, John Cornyn, Mike Lee and David Vitter, for example, filed an amicus brief in the Hobby Lobby case to support, in Cornyn’s words, “the rights of all Texans and all Americans to practice their religious beliefs without obstruction from the federal government.”

While the prospect of the Supreme Court’s conferring religious freedom rights to corporations has attracted the most attention, some legal scholars believe there may be a way out for the court should it seek to avoid the fraught politics of the case.

The theory, first proposed by Georgetown University Law School professor Marty Lederman, holds that there is no “employer mandate” as charged by the plaintiffs. Thus, he argued, the $100 per employee per day assessment that Hobby Lobby says is the onerous government penalty is not a “substantial burden.” Hobby Lobby could simply cancel its group health plan, allowing its employees to acquire insurance on the exchanges, and pay the assessment, which Lederman calculates is actually less than the cost of a group health plan.

Despite the abundance of analysis of the case, even close court watchers are hard pressed to predict an outcome. A decision in the case is expected this summer.