The Supreme Court Will Consider the Contraceptive Mandate

The Supreme Court will hear two cases challenging the Affordable Care Act's provision requiring insurance plans to fully cover contraceptives for women.

As predicted by most court watchers, the Supreme Court announced on Tuesday that it will hear the controversial Hobby Lobby case challenging the Affordable Care Act's contraceptive mandate. The court will also take up a second birth control case, from a small, Mennonite-run company called  Conestoga Wood Specialties. The second case focuses on whether corporations have free exercise rights, and whether those rights are violated by the Affordable Care Act.

Both cases challenge a provision of the Affordable Care Act that requires insurance plans to cover contraceptives for women. And they're just two of many: more than 40 suits from private, for-profit employers in the courts right now challenging that mandate on religious liberty and First Amendment grounds, an issue that has widely divided the federal appeals courts. Arguments are expected in March for both cases, which the court will hear simultaneously. The court would likely issue its decision in June.

At issue in the Hobby Lobby case is whether the 1993 Religious Freedom Restoration Act applies to individuals and corporations. The 10th Circuit Court of Appeals decided that Hobby Lobby is indeed protected under that law, citing the Supreme Court's Citizens United decision. The SCOTUS decision, among other things, gave corporations more room to claim "personhood." Religious organizations and religiously-affiliated non-profits are already exempted from the contraceptive mandate. The federal government, as MSNBC's Irin Cameron explains, wants the Supreme Court to settle both the religious freedom and corporate personhood claims at issue here with a decision on the Hobby Lobby case:

But if the Court does take up one of the birth control refusal cases and eventually rules that a corporation has the same religious liberty rights as a person, the longer-term impact on corporate regulations could be sweeping. That’s what Solicitor General Donald Verrilli warned in his request that the Court settle the question through the Hobby Lobby case. The Religious Freedom and Restoration Act, enacted to protect minority interests, would be “transform[ed] from a shield for individuals and religious institutions into a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws.”

Hobby Lobby also wanted SCOTUS to take up its case. In a brief filed with the court, Hobby Lobby explained that its current plan excludes coverage for Plan B, Ella, and two types of intrauterine devices because the company believes those forms of contraception "can prevent an embryo from implanting in the womb." The company's request for an exemption is limited to those four products, which they call "abortifacients" in the briefing. The Conestoga Wood Specialties challenge is also limited to the above mentioned forms of birth control, which, it should be noted, do not actually cause an abortion.

For the record, Physicians for Reproductive Health, the American College of Obstetricians and Gynecologists, and other groups with medical expertise have stated to the court that the legal and medical definition of pregnancy begins at the implantation of the embryo, and not at fertilization. That's "regardless of an individual’s personal or religious beliefs or mores" otherwise, the groups added. A handful of anti-abortion and Catholic groups filed a separate brief claiming that it is "scientifically undisputed" that "life" begins at fertilization, in line with the religious beliefs promoted by Hobby Lobby.

Sarah Posner breaks down what's at stake in the Conestoga Wood Specialties case over at Religion Dispatches. Like Hobby Lobby, the Conestoga case has a lot to do with the Citizens United precedent:

Depending on how the Court rules, it may decide whether the precedent represented most recently by Citizens United v. FEC—that corporations have free speech rights—dictates that they should have free exercise rights as well. In addition to arguments based on the free speech cases, the plaintiffs have argued that the separation of the Free Exercise and Free Speech Clauses by a semicolon requires that the two clauses be interpreted, for these purposes, identically.

The Third Circuit court ruled against the Conestoga company in its decision., arguing that the semi-colon in the First Amendment does not mean that the two clauses merit a joint interpretation.

Later on Tuesday, the White House issued a statement in response to the court's decision to take up the Hobby Lobby case:

 Earlier this year, the Obama Administration asked the Supreme Court to consider a legal challenge to the health care law’s requirement that for-profit corporations include birth control coverage in insurance available to their employees.  We believe this requirement is lawful and essential to women’s health and are confident the Supreme Court will agree ... The President believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.  The Administration has already acted to ensure no church or similar religious institution will be forced to provide contraception coverage and has made a commonsense accommodation for non-profit religious organizations that object to contraception on religious grounds.  These steps protect both women’s health and religious beliefs, and seek to ensure that women and families--not their bosses or corporate CEOs--can make personal health decisions based on their needs and their budgets.

This post has been updated with new information.