Depending on whom you ask, Tuesday morning’s oral argument at the Supreme Court is about whether Obamacare can keep treading on religious liberty — or it’s about a woman’s right to access contraception on her employee insurance plan, no matter what her employer thinks of it. Either way, it is the first time the Affordable Care Act will be at the nation’s highest Court since it was first largely upheld as constitutional. The same two men as in that case, current Solicitor General Don Verrilli and former Bush administration solicitor general Paul Clement, are facing off to argue over a narrower provision.
Before the Supreme Court decides whether the contraceptive coverage required of insurance plans under the Affordable Care Act violates a 1993 law governing religious liberty, it has to settle the threshold question: Does a corporation even have religious liberty?
Hobby Lobby Stores, an Oklahoma-based, evangelical-owned craft chain with about 13,000 employees, and Conestoga Wood Specialties, a small Mennonite-owned cabinet maker in Pennsylvania, sued the administration and got two very different answers from the lower courts. The Tenth Circuit Court of Appeals declared of Hobby Lobby that “such corporations can be ‘persons’ exercising religion.” In ruling on Conestoga’s bid for exemption from the requirement, the Third Circuit disagreed: “For-profit secular corporations cannot exercise in religious exercise.”
The companies are among the 47 for-profit corporations that have objected to their company plans complying with the minimum coverage requirements under the Affordable Care Act. Under those regulations, contraception is covered fully, without a co-pay, as preventive care. Hobby Lobby and Conestoga Wood object to a handful of contraceptives that they speculate can block a fertilized egg, which is neither documented in the science nor the medical definition of abortion. Other for-profit plaintiffs object to any birth control coverage at all.
Houses of worship are exempt from the regulation, and religiously-affiliated non-profits, like charities, hospitals and churches, were granted a compromise plan where the insurer cut out the middleman and provided the coverage directly.
Hobby Lobby, Conestoga Wood, and their for-profit brethren are seeking an exemption that would put them in the same category as a church, citing the Religious Freedom Restoration Act, a law that was intended to protect individuals. “We’ve said all along that there’s no basis for picking out one corporation, the non-profit versus the profit-making one, and saying that one can exercise religion and the other can’t,” Kyle Duncan, lead attorney on the Hobby Lobby case and general counsel at the Becket Fund for Religious Liberty, told msnbc earlier this year. While employers can’t stop their employees from using birth control (including paying for it with their wages), Duncan said, “Their moral objection is being made to participate in the process.”
The Obama administration says that the government has a compelling interest in women’s health and in gender equality. The Department of Health and Human Services agreed to classify contraceptives as preventive care after considering testimony from medical experts, who cited the country’s high rate of unintended pregnancy and the persistence cost barriers to accessing effective birth control.
Some legal experts argue that to rule for Hobby Lobby would be imposing religion on others, by forcing the women who work for such companies to pay the cost of their employers’ religion. Frederick Gedicks, a law professor at Brigham Young, has even argued in a brief before the Court that doing so would violate the establishment clause of the First Amendment.
The Obama administration hasn’t gone quite that far in defending the law. But when it asked the Court to hear the Hobby Lobby case so as to settle the question, Solicitor General Donald Verrilli warned granting religious freedom rights to corporations at the expense of their employees could transform the Religious Freedom Restoration Act “from a shield for individuals and religious institutions into a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws.”
While oral argument is rarely predictive, many eyes will be on Justice Antonin Scalia, who wrote the 1990 decision that spurred the Religious Freedom Restoration Act, a law meant to essentially reverse him. Scalia argued in that decision that exempting individual citizens from generally applicable laws — in other words, not ones crafted to punish them — “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” On the other hand, that case was about Native Americans smoking peyote, not Christians objecting to women taking measures to have non-procreative sex. And whether corporations can become laws unto themselves remains to be seen.
Irin Carmon