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.
