Supreme Court takes up Obamacare’s contraception dispute

McClatchy Washington BureauNovember 26, 2013 


A full-size scrim imprinted with the U.S. Supreme Court building's facade covers scaffolding during renovation work at the Supreme Court in Washington, D.C.


— The embattled health care law dubbed Obamacare will be returning to the Supreme Court, this time for a decision on whether employers must cover contraception in their insurance plans.

The highly anticipated challenge in a pair of cases will mark the first time the high court has taken up the Patient Protection and Affordable Care Act since upholding its key planks in June 2012. The case also will pit religious beliefs against governmental power, with potentially far-reaching consequences for both.

“The question presented is one of exceptional importance,” U.S. Solicitor General Donald Verrilli Jr. advised the Supreme Court in a legal brief.

Underscoring the case’s significance, and foreshadowing the kind of kibitzing to come, California and 10 other states filed a legal brief likewise urging the court to hear the challenge in one case commonly called Sebelius v. Hobby Lobby. The names stand for Health and Human Services Secretary Kathleen Sebelius and Hobby Lobby Stores, though whole armies of advocates are arrayed behind each side.

A second challenge, filed by a small company in Lancaster County, Pa., which is owned by Mennonites, also will be heard during an hour-long oral argument sometime next spring.

“This will be a very important case, because it will help determine the scope of religious freedom,” Lori Windham, senior counsel at the Becket Fund for Religious Liberty, said in an interview Tuesday, adding that “it’s a very important question, whether a family can maintain its religious freedom when it operates a business.”

The Becket Fund for Religious Liberty is representing Hobby Lobby. A separate group, the Georgia-based Alliance Defending Freedom, is representing the Pennsylvania company. The two ideological allies have not yet figured out who gets to argue the case before the Supreme Court.

The issue to be decided concerns the so-called contraceptive mandate, which so far has spurred radically different conclusions from lower appellate courts. This division on a pressing legal question had all but guaranteed the Supreme Court would grant a hearing.

“The Supreme Court has to resolve this split,” said Dawn Johnsen, a professor at Indiana University Maurer School of Law. She expects the court to be closely divided.

The health care law sets minimum standards for the health insurance packages offered by employers that employ more than 50 workers. Among other requirements, the plans must cover certain preventive exams, immunizations and screenings for diseases such as diabetes. The plans also must cover an array of contraceptive methods that have been approved by the Food and Drug Administration, including pills, diaphragms, intrauterine devices and emergency contraceptives.

Reflecting the intense scrutiny, more than 249,000 public comments were lodged with the two federal agencies preparing the contraceptive mandate rules, according to the Sunlight Foundation.

Nonetheless, Charlotte, N.C.-based Belmont Abbey College and other schools associated with a number of different faiths have filed their own lawsuits. All told, some 84 lawsuits have been filed challenging the mandate.

The founders of Hobby Lobby, an Oklahoma City-based chain that employs some 13,000 workers in more than 500 arts-and-crafts stores nationwide, likewise say at least part of the contraceptive mandate violates their religious convictions. Those Christian convictions include the belief that life begins at conception, when an egg is fertilized.

Because of this belief, the Hobby Lobby officials object to providing or paying for two specific drugs known as Plan B and Ella. The drugs also are sometimes called the morning-after pill and the week-after pill, and each may prevent fertilized eggs from implanting in the womb. This is tantamount to abortion, according to anti-abortion advocates.

“Faith-based employers, including Catholic charities, schools, universities and hospitals, should not be forced to provide services that contradict their faith,” House Speaker John Boehner said in a statement.

Hobby Lobby’s owners say the contraception mandate violates the First Amendment as well as the Religious Freedom Restoration Act. The 1993 law states that the government “shall not substantially burden a person’s exercise of religion” unless the government action is the least restrictive means to serve a compelling purpose.

The married couple that started Hobby Lobby declare in the company’s statement of principles that they would commit to “honoring the Lord in all we do by operating the company in a manner consistent with biblical principles.” The chain of stores, for instance, is closed on Sunday.

The separate challenge filed by Pennsylvania-based Conestoga Wood Specialties was rejected by an appeals court. A key question in both cases is whether for-profit corporations enjoy the same First Amendment religious protections that cover individuals.

The Obama administration argues in part that the Religious Freedom Restoration Act was intended to protect individuals rather than for-profit corporations.

“There is no plausible basis for inferring that Congress intended or could have anticipated that for-profit corporations would be covered by (the law),” Verrilli said in the solicitor general’s brief.

The Obama administration further contends that the government has a compelling interest in ensuring that women have access to contraceptives because “a lack of contraceptive use has proven in many cases to have negative health consequences for both women and children.”

Email:; Twitter: @MichaelDoyle10

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