On Nov. 26, it was announced that the Supreme Court would take up the “Sebelius v. Hobby Lobby” case, combining it with another outstanding case brought by Conestoga Wood Specialties of Pennsylvania. The two cases, which received differing rulings at the appellate level, challenge the birth control mandate of the Affordable Care Act. The mandate requires full coverage of preventative services, including the full range of contraception, and some have called it a violation of their freedom to religious exercise. So what does all this really amount to? Well, let’s start at the beginning.
Religious Freedom and the Birth Control Mandate
The crux of these cases, being heard together, is that the owners of these corporations have religiously based moral objections to certain forms of contraception, and as such it violates their beliefs to provide this coverage to employees. Churches and faith based organizations have been granted exemptions, with insurance companies being required to offer employees of such organizations with a separate plan to fill in the gap. But for corporations like Hobby Lobby, no such exemption has been offered.
The case for an exemption rests on both the freedom of religious exercise clause of the First Amendment and the Religious Freedom Restoration Act of 1993, which bars any law creating a substantial burden on religious exercise. But do either of these apply to corporations? Those opposed to the birth control mandate would say that, yes, it does violate religious freedom to require the employer provide coverage for contraceptives. Advocates of the mandate disagree, citing the long standing traditional understanding that the owner and the corporation are separate entities, and that not providing access to these services would mean projecting their own religious beliefs onto others.
To The Supremes
The differing rulings handed down in appeals court on these cases is part of why it’s being taken up by the Supreme Court. There have been more than 80 cases brought forth over this mandate on similar grounds, so a precedent set by the Supremes is necessary to set some standard. Should the Supreme Court rule in favor of Hobby Lobby and Conestoga Wood Specialties, it could have some considerable fallout beyond these 80 odd cases, though.
The micro question here is whether this mandate violates specific religious freedom rights. More broadly, the question could be seen as where the line is between the corporation owner’s beliefs and the rights of employees. Given the traditional understanding that religious exercise rights apply to individuals rather than corporations, this case could set a precedent that allows the challenging of other mandates or acts by corporations on the basis of individual rights.
This Supreme Court has a conservative tilt, which is making many advocates of the mandate nervous. The Citizens United case, which gave corporations the same rights as people to support or oppose candidates through things like advertising independent of official campaigns, also had grounding in the First Amendment. But the earlier case on the individual mandate of the Affordable Care Act was upheld, so it’s not clear how the court is likely to rule.
For the Affordable Care Act, this particular case won’t do much damage. Even with an increased number of exemptions from this mandate, a large number of companies have already implemented the requirement with no objection. The ACA won’t be greatly hindered by a negative ruling on the mandate, although the amount of advocacy work that has gone into selling the preventatives services portions of the act could mean the loss of political capital for the left.
For the right, should the mandate be fully upheld it will mean the puncturing of another attempt to cripple the ACA through the courts. It most likely will not be the end of efforts, but could mean the end of the Supreme Court hearing cases on the constitutionality of President Obama’s landmark legislation. With repeal votes going nowhere in Congress and more of the ACA going into effect, those who oppose the legislation will be hard pressed to find avenues to pause and push back the rollout.
The case will be heard in March 2014, with a ruling expected over the summer.
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