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Supreme Court Considering Tuesday Whether To Hear Contraceptive Coverage Cases

Supreme Court Considering Tuesday Whether To Hear Contraceptive Coverage Cases

November 25, 2013 — On Tuesday, the Supreme Court will consider whether to review any of four lawsuits challenging the federal contraceptive coverage rules, the National Constitution Center's "Constitution Daily" reports.

Legal experts believe the high court will consider at least one of the cases in its current term and issue a decision by next year ("Constitution Daily," National Constitution Center, 11/25).

The contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer contraceptive coverage to their workers. Houses of worship are exempt from the requirement, and religiously affiliated not-for-profits are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage to their employees. Private companies are not eligible for an exemption or accommodation (Women's Health Policy Report, 11/22).

Potential Cases

One of the four cases the justices will consider on Tuesday involves the arts-and-crafts retail chain Hobby Lobby. The central issue in the case is whether the 1993 Religious Freedom Restoration Act (PL 103-141) allows the owners of a for-profit company to deny workers contraceptive coverage through employer-sponsored health plans because of the owners' personal religious beliefs.

In the second case, the Mennonite owners of the for-profit business Conestoga Wood Specialties claim that the contraceptive coverage rules violate the First Amendment's free exercise clause and RFRA.

The third suit, filed by owners of Autocam, also involves RFRA and whether the owners' personal religious objections to contraception should exempt them from the mandate. In the fourth case, Liberty University claims that the ACA's employer and individual mandates require employers and their workers to violate their religious beliefs and First Amendment rights. The university also questions Congress' authority to pass the employer mandate.

DOJ Wants Hobby Lobby Case First

The Department of Justice has asked the Supreme Court to review the Hobby Lobby case first. However, lawyers in the three other cases have argued that Hobby Lobby's suit is too narrow in scope to allow for an adequately broad interpretation of the law ("Constitution Center," National Constitution Daily, 11/25).

If it takes the Hobby Lobby case, the Supreme Court would have to revisit the principles of its 2010 Citizens United v. Federal Election Commission decision -- which said that a corporation has a right to free speech under the First Amendment -- and determine whether corporations also have a right to the free exercise of religion, the New York Times reports.

Writing a majority opinion in favor of Hobby Lobby, 10th U.S. Circuit Court of Appeals Judge Timothy Tymkovich cited "the First Amendment logic of Citizens United," writing, "We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression."

Tymkovich added that the nature of the company as a for-profit entity should not affect claims of religious liberty. "Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?" he wrote.

On the other side, Solicitor General Donald Verrilli told the high court that the 10th Circuit's "unprecedented ruling" would allow "for-profit companies to deny employees the health coverage to which they are otherwise entitled by federal law, based on the religious objections of the individuals who own a controlling stake in the corporations."

Verrilli added that requiring health plans to include comprehensive contraception coverage is justified by the government's interest in "the promotion of public health" and ensuring that "women have equal access to health care services." He said that doctors, not companies, should decide which contraceptive is best for an employee (Liptak, New York Times, 11/24).