December 5, 2021

High court to weigh limits of religious liberty in O-Care case

President Obama’s signature healthcare law is headed back to the Supreme Court in a high-stakes case that could redefine the limits of religious freedom in the United States.

The high court on Tuesday will hear challenges to ObamaCare’s contentious “birth control mandate,” which requires companies to offer contraceptive services to workers as part of their insurance coverage.

If successful, the challenge could peel away a significant portion of the mandate, potentially affecting preventive health coverage for millions of women and striking a major blow to the law itself.

But the court’s ruling could also have far-reaching implications for religious liberty by allowing companies to claim First Amendment rights that the government says are reserved for individuals.

“It’s pretty huge,” said Laurie Sobel, a senior women’s policy analyst at the Henry J. Kaiser Family Foundation. “It’s hard to overstate the possible implications.”

The case pits the government against a pair of for-profit companies — the Hobby Lobby craft store chain and Conestoga Woods Specialties, a Pennsylvania-based cabinetmaker. The firms, who together employ thousands workers in nearly every state, say they should be exempted from the mandate to provide contraceptive coverage because the corporation’s owners object to it on religious grounds.

The two companies’ lawsuits — among some 90 legal assaults on the contraception mandate — were consolidated into a single case before the court. The firms cite both the First Amendment’s free exercise clause and the 1993 Religious Freedom Restoration Act (RFRA), which provides that, “government shall not substantially burden a person’s exercise of religion.”

In defense of the mandate, the government argues that corporations are not people and therefore are not are not afforded free exercise rights.

The firms — who could face millions of dollars worth of penalties if they are found subject to the regulations and refuse to abide — call the mandate a clear government overstep.

“Ultimately, whether it is the individuals, the corporations, or both who are exercising religion, the government cannot simply wish away the reality that its policies substantially burden Respondents’ religious exercise in a wholly unjustified manner,” Hobby Lobby argues in a legal brief filed last month.

The mandate, imposed via regulations drafted under the Affordable Care Act, requires, with some notable exceptions, companies to cover 20 FDA-approved contraceptive methods to workers at no cost.

The services run the gamut from condoms and oral contraceptives to intrauterine devices (IUD) and surgical sterilization.

Hobby Lobby and Conestoga do not object to regulations requiring them to cover the majority of the methods, which prevent pregnancy by blocking egg fertilization. The firms take exception with the Plan B or “morning-after” pill and the Ella, also known as the “week-after pill,” which block pregnancy by preventing the implantation of a fertilized egg in the uterus.

Conestoga is operated by a family that follows Mennonite beliefs, which say a person’s intentional termination of a fertilized egg is “intrinsic evil and a sin against God to which they are held accountable,” according to an American Bar Association overview of the case. They oppose both Plan B and Ella.

The Christian family that runs Hobby Lobby, which believes life begins with the fertilization of an egg, argues their beliefs preclude offering coverage for either of those pills, or two kinds of IUDs.

The companies could face steep $100-a-day penalties for each employee if they violate the regulations. That works out to nearly $475 a year for Hobby Lobby, which covers more than 13,000 workers, Sobel said.

Conestoga, with 950 employees, would face penalties approaching $35 million annually.

Attorneys for the firms note that the government has already exempted houses of worship and companies with fewer than 50 employees from the regulations, and has provided additional accommodations for non-profits with direct religious affiliations that hold the same objections as Hobby Lobby and Conestoga.

Thus, Hobby Lobby’s brief argues, the regulations draw a distinction absent in the Constitution or the RFRA.

“The government’s effort to dismiss that burden as insubstantial is belied by the draconian fines for non-compliance and its willingness to accommodate others with the exact same beliefs,” the firm charges.

But women’s health advocates say a ruling in favor of the firms could lead to a spike in abortions by limiting access to birth control. The healthcare law, they argue, guarantees a woman’s choice of contraceptive method.

“Access to no cost birth control allows women to choose what’s best, not just what’s cheapest,” said Cecile Richards, president of Planned Parenthood Action Fund.

The advocates say denying these services to women while allowing the full range of men’s healthcare options is tantamount to discrimination.

They point to other court rulings that prohibit businesses from denying services based on religious beliefs.

“They are out of bounds, they are out of touch, they are out of line,” said Ilyse Hogue, president of NARAL Pro-Choice America. “And our bodies are not our bosses business.”

If Hobby Lobby prevails, the weakened mandate would likely remain in place. But it could also bode well for a series of other cases winding their way through the courts on the mandate.

In the face of those cases, the mandate — like ObamaCare in its entirety — is threatened with death by a thousand cuts.

However, the government has multiple paths to victory in the case. First, it will attempt to convince the justices that a company is not, in the context of RFRA, a “person” capable of religious belief.

If the court disagrees, the government can still make the case that the firms are not substantially burdened by the regulations. And even if they are, that burden can be deemed acceptable if it comes as the result of a “compelling government interest” to protect women’s health and that the goal is accomplished in the least restrictive way.

Failure on all of those counts could open the floodgates to a torrent of actions designed to bolster the religious rights of businesses, experts say.

The case comes to the Supreme Court on the heels of Arizona’s debate over a law (approved by the state legislature, but ultimately vetoed) that would have allowed businesses to refuse service to any customer on the basis of their religious views.

Similar proposals have cropped up in Kansas, Oklahoma and elsewhere, Sobel said.

“There’s a lot of stake here,” said Yeshiva University law professor Marci A. Hamilton. “This is the heart of the culture war.”

The magnitude will be evident at the Supreme Court Tuesday, as was the case on the sweltering day in June of 2012 when throngs of ObamaCare supporters and opponents gathered for the court’s decision to uphold the law’s individual mandate.

This time around, proponents of the contraceptive mandate say their side alone will have as many as 1,000 supporters on hand.

“We will be out in force at the Supreme Court on Tuesday,” Richards said.