Supreme Court Agrees To Hear Challenge To ObamaCare’s Contraceptive Coverage Mandate

The Supreme Court has agreed to hear a pair of cases that implicates both the First Amendment and two Federal Laws.

Supreme Court Justices 2

As I’ve noted several times in recent months, the Federal Courts have been dealing quite a lot lately with challenges to the mandate contained within the Affordable Care Act requiring all employer-based health care plans to provide coverage for contraceptives,  including some drugs that are characterized, whether correctly or not, as potentially capable of inducing an abortion at the very, very early stages of a pregnancy. To date, some half dozen of these cases have made it to various Federal Circuit Courts of Appeal and the Judges handling those cases have come down on different sides of the issue. On the principal issue of whether or not their exists, either under a First Amendment or a twenty year old Federal Law called the Religious Freedom Restoration Act, the Circuits are about evenly divided, with half deciding that either the Free Exercise Clause or the RFRA protects, at the very least, that owners of closely held corporations (as opposed to publicly traded ones, which have generally not been parties to any of these cases) cannot be compelled to violate their religious beliefs by being required to provide coverage for medical treatment they believed violated those beliefs. These same Courts have been more sharply divided on the narrower issue of whether the Free Exercise/RFRA rights are something that belong solely to the owners of the corporation, which they can exercise through the entity the own, or whether the corporation itself has such rights via its owners.

Given the division between the Circuits on these issues, and the fact that two Federal laws (the PPACA and RFRA) and the Constitution are involved,  it was, as I’ve said in the past, that this matter would end up before the Supreme Court. So, it’s not surprising that today the Court announced that it had accepted appeals in two cases involving the contraceptive mandate, thus virtually guaranteeing that this issue will be decided before the end of the current Supreme Court term:

WASHINGTON — The Supreme Court on Tuesday agreed to hear a pair of cases on whether corporations may refuse to provide insurance coverage for contraception to their workers based on the religious beliefs of the corporations’ owners.

The cases present a new challenge to President Obama’s health care law. The Supreme Court in 2012 upheld another part of the law, one that requires most Americans to obtain health insurance or pay a penalty.

The Obama administration has exempted many religious groups from the law’s requirements for contraception coverage. But it said for-profit corporations could not rely on religious objections to opt out of compliance with the law.

“Our policy is designed to ensure that health care decisions are made between a woman and her doctor,” Jay Carney, the White House press secretary, said in a statement. “The president believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.”

The lower courts are divided over whether for-profit corporations may object to generally applicable laws on religious liberty grounds.

In June, the United States Court of Appeals for the Tenth Circuit, in Denver, ruled for Hobby Lobby, a corporation owned by a family whose members have said they try to run the business on Christian principles. The company, which operates a chain of arts-and-crafts stores and has more than 15,000 full-time employees of many faiths, objected to a requirement in the health care law requiring large employers to provide their workers with comprehensive insurance coverage for contraception.

Hobby Lobby told the justices that it had no problem with offering coverage for many forms of contraception, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery. But drugs and devices that can prevent embryos from implanting in the womb are another matter, and make it complicit in a form of abortion, the company said,

Kyle Duncan, a lawyer with the Becket Fund for Religious Liberty, which represents Hobby Lobby, said he was pleased the justices had agreed to resolve the split among the federal appeals courts. “We hope the Supreme Court will vindicate the rights of family business owners,” he said.

Nancy Northup, president of the Center for Reproductive Rights, said in a statement that “the right to religious freedom belongs to individuals, not for-profit institutions.”

“These for-profit companies,” she said, “are no more entitled to deny women insurance coverage for essential health care than they are to dictate how any of us can and cannot spend our paychecks.”

In July, the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against the Conestoga Wood Specialties Corporation, which manufactures wood cabinets and is owned by a Mennonite family that had similar objections to the law. The Third Circuit concluded that “for-profit, secular corporations cannot engage in religious exercise.”

David Cortman, a lawyer with Alliance Defending Freedom, which represents the company and its owners, said the ruling was wrong. “The administration has no business forcing citizens to make a choice between making a living and living free,” he said.

The Third Circuit rejected an analogy to the Supreme Court’s 2010 decision in Citizens United, which ruled that corporations have a First Amendment right to free speech. Though the First Amendment also protects the free exercise of religion, Judge Robert E. Cowen wrote for the majority of a divided three-judge panel, “it does not automatically follow that all clauses of the First Amendment must be interpreted identically.”

But a five-judge majority of an eight-judge panel of the Tenth Circuit, in the Hobby Lobby case, said “the First Amendment logic of Citizens United” extended to religious freedom.

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy M. Tymkovich wrote for the majority.

As Sarah Kliff notes, these particular cases are likely to have little real impact on the PPACA itself regardless of which way they go. However, they could have a potentially  big impact on future religious liberty claims under both the Free Exercise Clause and the RFRA:

The Supreme Court’s decision here won’t be especially pivotal to the future of the health law in the way that the June 2012 individual mandate decision was. While this has been one of the more hotly contested parts of the Affordable Care Act, it is not a central policy that holds everything together, as the requirement to purchase coverage near certainly is.

Instead, this decision will have a whole lot more to do with a separate federal law, the Religious Freedom Restoration Act, known in legal circles as RFRA. This is a Clinton administration law that allows private individuals to challenge federal regulations that put a “substantial burden” on their ability to exercise a sincere religious belief.

If a private individual can prove that substantial burden, it’s up to the government to show two things: That the law furthers a compelling government interest and that that interest cannot be furthered in any other way that would be less restrictive to religion.

As it has in other recent high profile cases, I suspect that we’re going to see the Supreme Court approach this issue cautiously, especially given the fact that they are likely going to be considering the future implications of their decision in other areas of the law. A broad ranging decision along the lines of what the Plaintiff’s attorneys would likely be seeking would, quite obviously, raise a whole set of new types of cases where employers or individuals could potentially argue that their religious beliefs ought to give them exemptions from one Federal law or another that would end up clogging the Federal Courts for years to come. At the same time, it strikes me as unlikely that the Court is going to reject the employer’s arguments out of hand either given the long history of precedent that exists under both the Free Exercise Clause and the RFRA protecting those rights even in what might seem at first glance to be unconventional circumstances such as the employer-employee relationships at issue here. Quite likely, the Justices to watch here will be both Justice Kennedy and Chief Justice Roberts, either one of whom could end up being the deciding vote in what is likely to be a 5-4 decision. Of course, as we’ve learned in other cases, it’s also possible that the Court will find a way to dispose of the cases without really reaching the merits, but in the end all that is likely to do is delay the inevitable day when they will have to deal with the issue in the future.

Briefing in this case isn’t likely to begin until some time early next year, meaning that we’re probably looking at oral arguments in late March, which coincidentally the month in which the Court heard oral argument in the first round of PPACA litigation in 2011 and in the same-sex marriage litigation in 2012. That would mean we shouldn’t expect a decision in the cases until sometime very late near the end of the Court’s current term in June, which was when we got decision in those two sets of cases in 2011 and 2012. So, once again, it looks like a busy March and June for Supreme Court watchers.

FILED UNDER: Law and the Courts, Religion, Supreme Court, US Politics, , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. C. Clavin says:

    I’m sure SCOTUS will find that it’s fine for Corporations to impose their religious beliefs upon individuals. That’s what the Roberts Court does…defend Corporations.
    I wonder how many of those Corporations are in agreement with the Pope on this:

    In this context, some people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This opinion, which has never been confirmed by the facts, expresses a crude and naïve trust in the goodness of those wielding economic power and in the sacralized workings of the prevailing economic system. Meanwhile, the excluded are still waiting.

    My guess is that their religious beliefs become un-important to them at the end of their purse-strings. Of course that won’t matter to the SCOTUS.

  2. Moderate Mom says:

    As to the mandate, remember that John Roberts said it’s not a penalty. It’s a tax.

  3. Ron Beasley says:

    This is about a lot more than birth control. Just how much of a person is a corporation? Can a for profit corporation have a religion? Can a corporation owned by Christian Scientists insist they shouldn’t have to offer health insurance at all. Can a corporation owned by Jehovah Witnesses insist they should be able to offer health insurance that doesn’t cover blood transfusions? This is such a can of worms I suspect the SCOTUS will reject it.

  4. Pinky says:

    Yeah, but – there’s no severability clause in the law. I don’t see how the Court can strike down any part of it without striking down the whole law.

    Congress could pass a law before March that would remove the contraceptive mandate and thus insulate the PPACA. Now, there would be a tough vote. Should a Republican support a law that would eliminate the contraceptive mandate and claim that as a win, or gamble that the whole law could capsize with a SCOTUS ruling?

  5. Gustopher says:

    I think the obvious conclusion of corporations having religious beliefs is that Comcast will finally go to hell.

  6. Vast Variety says:

    If Hobby Lobby gets away with this I’m going to start a new religion that forbids me from paying any taxes.

    If corporations can use religion to get out of the ACA then they can use religion to get out of non-discrimination laws. Religion was used to try to prevent the end of slavery and the end of segregation, and it’s still being used today against gay’s and lesbians.

    Religion can be turned into anything you want it to be. What if a corporation owned by a follower of Islam required all their female employees to cover their heads?

  7. Rafer Janders says:

    If corporations are people, then we should really be able to jail the board and management whenever the corporation breaks the law….

  8. Rafer Janders says:

    including some drugs that are characterized, whether correctly or not, as potentially capable of inducing an abortion at the very, very early stages of a pregnancy.

    What do you mean, “whether correctly or not”? The word you should have written here is “incorrectly.”

  9. Rafer Janders says:


    Yeah, but – there’s no severability clause in the law. I don’t see how the Court can strike down any part of it without striking down the whole law.

    Your understanding of how the law works is false. The Court can easily strike down a section of the law while leaving the rest standing. You don’t understand the concept of a severability clause.

  10. pylon says:

    Corporate personhood is a legal fiction created to enable corporations to own property and have other limited rights. There’s a difference between corporations and individuals at law. I beelive only individuals can have religious beliefs.

    If the individuals behind corporations want the limited liability afforded to shareholders (as opposed to sole proprieters) they should take the downside too.

  11. Pinky says:

    @Rafer Janders: It’s possible I don’t. How does it work?

  12. Rafer Janders says:


    In most jurisdictions, including federal, the general principle is that if part of the law is illegal or otherwise unenforceable, then the rest of the law will nevertheless be held to be enforceable (assuming that the unenforceable part does not render the rest moot by virtue of being material or otherwise essential to the proper functioning of the legislation). An explicit severability clause, while helpful as a restatement of the concept, is not usually necessary to establish this principle, as it is otherwise presumed.

  13. Josh says:

    The really interesting hook in all this is going to be watching Scalia twist himself into a pretzel to get around his fairly unambiguous lines in Or v Smith. The case involved entirely different issues but scalia went way out in his pronouncement about what the govt can do.

  14. grumpy realist says:

    My prediction is whatever side they come down on, the opinion will be VERY narrowly written. Not quite as outrightly as they did in Bush vs. Gore (where they said quite explicitly “this is not a precedent for anything.”), but if they could say “this only applies to companies whose initials are H.L.” I believe they’d do it.

  15. grumpy realist says:

    Oh course, if Hobby Lobby IS allowed this….just wait until a closely-held company owned by devout Saudis decide to insist all female employees must wear burkas and be segregated from the male workers.

    For a bunch of people screeching about the use of Sharia in this country the Right certainly seems to want to put down the legal welcome mat to allowing employers to implement it. (Hmm…does this mean that an Islamic company could insist on interpretation of employee contracts via Islamic law?)

  16. wr says:

    @Vast Variety: “If Hobby Lobby gets away with this I’m going to start a new religion that forbids me from paying any taxes. ”

    Nope. Won’t work. Just as Native Americans can’t use peyote in their religious rituals.

    Because it says very clearly in the constitution: “Congress shall make no law prohibiting the free exercise of any religion to which Antonin Scalia happens to belong and on such issues with in he happens to believe. All others can go screw.”

  17. rudderpedals says:

    Just think, this or at least the spurious RFRA claim are fallout from the drug war and specifically the Peyote case. We really need to get back to the pre-RFRA standard affirming religously-neutral laws of general applicability, such as those providing for collective bargaining, child labor laws, and the primacy of the employee’s physician over the employer when it comes to medical decisions.

  18. James in Silverdale, WA says:

    Hmmm…. flirting with pouring gasoline on America’s festering civil war, are we? Are we really discussing “religious corporations?” I honestly don’t know how much higher the white flag of surrender could possibly be raised.

  19. Woody says:

    Love to see who was in the Rule of Four on this one. Remember, Sebelius v. Hobby Lobby was decided for Hobby Lobby.

    The Free Exercise Clause applying to corporate entities is so late 1800s SCOTUS, isn’t it? I can see them ruling for HL, setting Congress and/or the States up for an amendment bid. Of course, seeing how well Plessy et al has worked out, Roberts might not want to be the poster child for Melville Fuller 2.0.

  20. PD Shaw says:

    I place my bet on the “religious liberty” argument winning with six or more votes.

    Congress had the power to make the RFRA inapplicable to the ACA.

  21. Grewgills says:
  22. James Pearce says:

    @PD Shaw:

    I place my bet on the “religious liberty” argument winning with six or more votes.

    I’ll take that bet. I have a feeling that the 9 justices on the Supreme Court have a more sophisticated understanding of “religious liberty” than “I’m a man of faith, so I can do what I want.”

    After all, seems to me this case is going to be complicated by this:

    Hobby Lobby told the justices that it had no problem with offering coverage for many forms of contraception, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery. But drugs and devices that can prevent embryos from implanting in the womb are another matter, and make it complicit in a form of abortion, the company said,

    Seems like if Hobby Lobby wants to go the “form of abortion” route, they’ll have to first overcome their employees’ right to privacy.

    It’s an open question as to whether a corporation can or should have religious beliefs. It’s already been decided, however, that we have a right to privacy, even if you work at Hobby Lobby.

  23. dazedandconfused says:

    In defense of the Supreme’s, when they have a situation of lower courts actually conflicted on this crap, they gotta sort it out, don’t they?

    Just in case: Xenu’s employees only need body-Thetan audits, and He is deeply offended at the very notion that what you call “medical care” might be needed at all.

  24. al-Ameda says:

    Let’s see? 6 Catholic Justices – Scalia, Alito, Roberts, Kennedy, Sotomayor and Thomas – weighing in on the birth control/contraceptive mandate? Call me cynical but, I see an automatic 5 votes to uphold “religious liberty.”

    This shouldn’t even be in court. What about the mandate compels or forces a woman to purchase and use contraception and birth control?

    This is EXACTLY why health insurance benefits should NOT be linked to employment.

    We are a dumbed down country.

  25. Rob in CT says:

    I do expect a bad result here. If we’re lucky, they’ll do some sort of narrow carveout.

    Once again, it all boils down to whether one wishes to live in a quasi-feudal society, where employers (lords of the manor) dictate to employees (serfs) or if one wants to live in a society where the power of the lords is checked/overridden by the power of Big Government (which itself can be dangerous, it’s true), which ultimately is accountable to the people via elections. I worry, at times, about both forms of power. From what I can see, lots of conservatives (not all, lots) only fear government. Many seem to just loooove private power. Not freedom. Power.

  26. pylon says:

    They may well rule that way. However, they can’t do so with any consistency in accordance with previous corporate cases.

    BTW, who decides what religion a corp. belongs to?