On Tuesday morning, the Supreme Court will hear arguments from crafts store chain Hobby Lobby that Obamacare’s contraceptive mandate violates the religious freedom of the company and its owners.
The Greens, the evangelical Oklahomans who own Hobby Lobby, argue that the 1993 Religious Freedom Restoration Act (RFRA) protects them from having to provide the so-called morning after pill and intrauterine devices to their 13,000 employees, as required by the Affordable Care Act. The government counters that it has a compelling interest in requiring all health insurance plans to provide contraceptives to women and that Hobby Lobby’s religious beliefs do not trump their employees’ right to access care.
The Supreme Court’s decision could dramatically broaden employers’ latitude to object to laws on religious freedom grounds and potentially restrict access to contraception for thousands of women employed by people who share the Greens’ religious objections.
What are Hobby Lobby’s chances?
As always with the unpredictable Supreme Court, it’s hard to say. On the one hand, government lawyers point out that a large commercial operation has never before won a claim that its religious beliefs exempt it from regulations that other companies must follow. Religious freedom as guaranteed under the 1993 law has typically been thought to extend solely to individuals and not for-profit companies. The government also argues that Hobby Lobby is a distinct legal entity separate from its owners and shareholders and thus can’t hold religious beliefs.
But on the other hand, the Supreme Court under John Roberts has been very sympathetic to corporate interests, ruling in the 2010 Citizens United case that campaign finance laws infringed upon companies’ First Amendment rights. The conservative-leaning court has also been favorable to religious liberty claims in general and may well side with Hobby Lobby and rule that Obamacare violates free exercise rights.
What does Citizens United have to do with it?
The controversial 2010 case struck down campaign finance laws that sought to limit corporations’ involvement in political campaigns as a violation of their First Amendment rights. The 10th Circuit Court of Appeals, which ruled in favor of Hobby Lobby, said that if corporations have speech rights, they also have religious freedom rights. "We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression, but not its religious expression," 10th Circuit judges wrote in their decision.
But the 3rd and 6th U.S. Circuit Courts of Appeals have ruled that RFRA does not protect for-profit companies hoping to opt out of providing contraceptive coverage to employees. “We simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” Judge Robert Cowen of the U.S. Court of Appeals for the 3rd Circuit wrote for the majority. It remains to be seen if the justices will agree with the 10th Circuit that the Hobby Lobby case is in the same vein as Citizens United.
If Hobby Lobby wins, will the contraceptive mandate be struck down entirely?
Probably not, according to Timothy Jost, a law professor and health care reform expert at Washington and Lee University. Most large corporations would still be required to provide contraception in their health plans, but companies with religious objections would be granted exceptions if they stated specific religious objections. Reproductive rights organizations believe a ruling in Hobby Lobby’s favor could mean that employers could also prevent women from receiving counseling from health care advisers about contraception during their doctor visits.
Why are gay rights groups arguing against Hobby Lobby?
More than 30 LGBT groups signed on to a statement condemning Hobby Lobby’s argument as “cut from the same cloth” as efforts in Arizona and other states to allow businesses to deny service to gays and lesbians if it violates the owners’ religious beliefs. The groups fear that expanding religious freedom claims to large businesses would lead to more discrimination against gay people. (University of Virginia law professor Doug Laycock disagrees, saying that few judges would uphold discrimination against gay people as a sincere religious belief.)
Which lawyers are arguing the case?
Obama’s solicitor general, Donald Verrilli, will argue against Paul Clement, a star Supreme Court attorney for conservative causes, in the case. The men faced off against each other two years ago when House Republicans lost their bid to overturn Obamacare’s individual mandate as unconstitutional. Chief Justice Roberts ultimately upheld the mandate as a tax in a split opinion.
When will the court decide the Hobby Lobby case?