By: Matthew Brown, Deseret News
The U.S. Supreme Court will take on the Affordable Care Act again, this time deciding whether the controversial law violates the religious freedom rights of for-profit businesses that don't want to provide contraceptive coverage to employees.
More than 40 companies have sued the government over the birth-control mandate. The justices will consider two of those cases: one that the government lost against national arts and crafts retailer Hobby Lobby Inc. and another where it won against Pennsylvania cabinet-maker Conestoga Wood Specialties Corp.
The court said the cases will be combined for arguments, probably in late March. A decision should come by late June.
The cases present another legal test for President Obama's health care law and could determine whether the for-profit businesses can assert religious freedom rights under the 1993 Religious Freedom Restoration Act. In both cases, the companies claim that providing certain types of contraceptives would violate their faith.
But how the justices rule could have a more far-reaching impact. The mandate has generated 40 additional lawsuits by nonprofit religious organizations, such as colleges, making similar religious freedom claims against the government because the ACA requires them to provide birth control to their employees.
""You've got a well-known teaching of the country's largest religious organizations and a piece of the president's domestic policy. So, politically and religiously, the stakes are very high," said Douglas Laycock, a University of Virgina law professor and religious freedom scholar.
He added that the court's eventual ruling could also provide a "principle" around which states could resolve discrimination claims for small businesses that choose not to accommodate marriages of same-sex couples for religious reasons.
"If (the justices) say Hobby Lobby is protected, then a little husband-and-wife photography shop is an easy case to decide," he said, referring to a New Mexico photographer who was found in violation of the state's nondiscrimination law for not shooting a lesbian couples' ceremony. The photographer has appealed her case to the U.S. Supreme Court.
Hobby Lobby was the first of 44 for-profit businesses to sue the government over the ACA's mandate that requires most employers offering health insurance to their workers to provide a range of preventive health benefits, including contraception.
Their lawsuit describes a company created in 1970 in the Oklahoma City, Okla., garage of its founder, David Green, that infuses the Green family's Christian beliefs into how it operates the business. Christian music plays over the sound system in its 500 stores, which are closed on Sundays. The company also owns the Mardel Christian bookstore chain.
The Greens offer free spiritual counseling to their 13,000 employees, as well as contraceptives under an employee health insurance plan. But Hobby Lobby's plan does not cover Plan B and Ella, two emergency contraceptives, or two types of intrauterine devices (IUDs).
According to legal documents, the Greens' faith dictates that life begins at conception and the birth control methods they don't cover are tantamount to abortion.
Under the Obama administration's health care overhaul, contraception, emergency contraceptives and sterilization are included in the package of cost-free preventative health benefits employers must provide in their health insurance plans.
Conestoga Wood is owned by a Mennonite family that sued the government over the contraception mandate, objecting on religious grounds against providing emergency contraception "that may prevent the implantation of a human embryo in the womb."
But the 3rd U.S. Circuit Court of Appeals ruled against Conestoga saying "for profit, secular corporations cannot engage in religious exercise."
The 10th Circuit Court of Appeals saw it differently, however, ruling that Hobby Lobby has religious liberty as well as free speech rights that are protected under the 1993 RFRA - just as are the rights of individuals.
In appealing the 10th Circuit ruling to the Supreme Court, the government's brief argues that RFRA only protects individual conscience and that "(business owners) cannot ‘move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms.' ”
What's at stake
With lower courts split on whether profit-making businesses can assert religious freedom rights, legal scholars and attorneys involved in the cases expected the high court to take on at least one of the cases. The court did not take action Tuesday on a third appeal, this one from Autocam, a Michigan-based automotive and medical products manufacturer whose owners' Roman Catholic beliefs prohibit any form of artificial birth control.
Deciding whether businesses have protected religious beliefs is one of several questions the justices will need to answer in their ruling on the contraception mandate cases. Other issues include whether the mandate significantly burdens the practice of those beliefs, whether the government's interest in guaranteeing employees access to contraception outweighs the companies' religious freedom, and whether less-restrictive methods are available to provide contraceptive coverage to all employees.
“My family and I are encouraged that the U.S. Supreme Court has agreed to decide our case,” Green, Hobby Lobby founder and CEO, said in a statement. “This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution. Business owners should not have to choose between violating their faith and violating the law.”
Supporters of the government's position issued statements Tuesday saying that granting religious freedom rights to businesses would allow owners to impose their personal religious beliefs on their employees, particularly women who seek the preventative care benefits offered under the ACA.
“In more than 225 years since the ratification of the Constitution, the court has never held that a secular for-profit corporation has the right to free exercise of religion under the First Amendment, and it shouldn't start now," said a statement from the Constitutional Accountability Center
The Obama administration didn't comment on the specifics of the cases, but said an objective of the ACA's preventative care provision is to ensure a woman's health care decisions are between her and her physician.
"The President believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women," said White House spokesman Jay Carney.
This is the second time the court has addressed the president's health care law. In 2012 a divided court upheld the ACA's penalty for most individuals who don't obtain health insurance.
Out of the roughly 40 for-profit lawsuits against the government, the lower courts have issued 32 injunctions against government enforcement of the birth control mandate. The injunctions protect plaintiffs from having to pay hefty government fines for not complying with the mandate while their cases are pending.
For Hobby Lobby, the largest of the companies suing over the mandate, the fines would total $1.3 million a day - an indication of what's at stake financially for the national chain and its employees.
"I don't know, there are a lot of moving parts," Hobby Lobby President Steve Green said in September when asked what the company would do if it loses its case against the government. "All I can tell you is what we won't do. … pay for abortifacients for our employees."
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