The Supreme Court recently considered this question in Sebelius v. Hobby Lobby Stores, Inc. The case challenges the contraceptive mandate of the Affordable Care Act (ACA), President Obama’s signature legislative achievement. It marks the most significant legal challenge to the ACA since the court upheld the individual mandate in 2012. The outcome of the case will not only serve as a potential political victory for opponents of the ACA, but, more broadly, will further define the nature of the government’s relationship to its citizens and the exercise of their religious beliefs.
The Affordable Care Act contains a contraceptive mandate: Employers are required to cover twenty forms of contraceptive care for female employees. Among these are two forms of the “morning after” pill and two forms of intrauterine devices (IUDs). Citing religious beliefs, many individuals are opposed to these forms of contraceptives, believing they are tantamount to abortion. The Green family, owners of the national retailer Hobby Lobby Stores, Inc. subscribe to this belief. The family sued for a religious exemption from the clause for their company, claiming that the requirement to provide these contraceptives to their employees violates their guarantee of religious liberty.
In this case, the justices consider legal questions of how far protections for religious liberties extend, and whether this protection supersedes an employee’s right under the ACA to choose and obtain birth control. Hobby Lobby’s argument rests not on first amendment protections, but rather on the Religious Freedom Restoration Act, passed unanimously by Congress in 1993.
This act provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling government interest. They argue that the contraceptive mandate fails to meet this standard. The federal government, in response, argues that providing Hobby Lobby, and other similar companies, an exemption on religious grounds places an undue burden on the female employees to seek and obtain the contraceptive healthcare entitled to them by Congress, and is therefore a compelling government interest.
Oral arguments for the case were heard on Tuesday, March 25, almost two years to the day of the challenge to the ACA’s individual mandate. The justices appeared to be divided along the common ideological lines. The female justices pressed former solicitor general Paul Clement, who was arguing for Hobby Lobby, especially hard on the consequences of allowing a company to avoid federal law by claiming religious exemptions. The justices warned that this issue extends far beyond the case of the mandate itself, as companies could potentially be allowed to avoid a myriad of laws by claiming the laws to be offensive to their religious beliefs. Justice Kagan, for example, wondered whether a company could refuse to provide vaccinations to its employees by making a similar claim.
Solicitor General Donald Verrilli faced an equally aggressive line of questioning from the conservative justices: Alito, Scalia, Thomas, and Roberts. These justices were openly skeptical of his claims that the Religious Freedom Restoration Act provided for any consideration of the interests of the female employees, and expressed doubt that a ruling in favor of Hobby Lobby would have any far-reaching implications beyond the, in their eyes, narrow issue at hand. Critically, Verrilli conceded that, under the legal argument he was advancing, Congress could mandate a company to cover abortion procedures. Clement jumped on this, focusing his rebuttal on the concession.
Arguably the most important question the court must resolve is whether a corporation is capable of exercising religious beliefs, and is therefore qualified to the protections granted by the RFRA. While certain organizations, such as churches, are already guaranteed religious protections, these have never been extended to for-profit corporations such as Hobby Lobby. The Greens argue that since they privately own the company, it is simply an extension of their persons. They explicitly organized their business to adhere to Christian principals; for example, their stores are closed on Sundays. Others argue, however, that it is proper for corporations to be distinct from their owners, as is the overriding principal in business law, and therefore lack religious beliefs to protect.
This case has serious potential legal and political ramifications. The court has the potential to set a new precedent that entitles corporations, insofar as they are an extension of their owners, to religious exemptions from federal regulations. More immediately, this case will have political consequences. If the justices rule the contraceptive mandate violates protected religious liberties, it will buttress Republican arguments that the Affordable Care Act is an overreach of the government’s power into the personal lives of its citizens. This will give further ammunition to the attacks on the ACA as Republicans once again seek to make it a central issue in the upcoming midterm elections. While these consequences are potentially serious, they are more limited in scope than the previous challenge to the ACA in 2012. Most importantly, the justices will not be ruling on the constitutionality of the law itself, but rather a specific exemption to a specific section of the law.
Seven votes are all but locked. Chief Justice Roberts will most likely side with Hobby Lobby; however, his decision to uphold the individual mandate will not soon be forgotten. This most likely leaves Justice Kennedy holding, once again, the deciding vote. No matter what the justices rule, this case will not only send waves through the political and legal landscape, but will have very tangible consequences for women seeking contraceptive health care. While this case seems to be another opportunity for the Roberts Court to further shift the nation’s legal framework to the right, it is far from certain that they will do so. Look for a ruling at the end of the term, sometime in late June.