By Mary Anne Pazanowski

The U.S. Supreme Court Nov. 26 agreed to consider the validity of the women’s preventive services mandate, one of the most controversial provisions of the Affordable Care Act (Sebelius v. Hobby Lobby Stores, Inc., U.S., No. 13-354, cert. granted 11/26/13; Conestoga Wood Specialties Corp. v. Sebelius , U.S., No. 13-356, cert. granted 11/26/13).

The provision, also known as the contraceptive mandate, requires health plans offered by employers with 50 or more employees to provide coverage for contraceptive drugs, devices and related counseling at no charge to their employees.

At issue is the constitutionality of the mandate, as applied to for-profit, wholly secular corporations whose owners object to providing contraceptive coverage on religious grounds. The companies and owners in the two cases granted review argued that the mandate unlawfully interferes with their exercise of religion.

Cases Demonstrate Split

Courts throughout the country have split on the issue of whether closely held corporations, either in their own right or through their owners, may exercise religion, as contemplated by the First Amendment’s free exercise clause. Further, courts haven’t agreed on whether corporations may decline to comply with the mandate, a law of general applicability, on religious grounds. The two cases in which the court granted review exemplify the disagreement.

The Supreme Court granted a petition for review filed by the Obama administration in Sebelius v. Hobby Lobby Stores, Inc. The government sought review of a decision by the full U.S. Court of Appeals for the Tenth Circuit, which held that two corporations and their owners were likely to succeed on the merits of their claim that the mandate violates the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, by requiring the corporations to provide insurance coverage for contraceptives in violation of their religious beliefs or else pay a hefty fine.

RFRA says the government may not place a “substantial burden” on a person’s exercise of religion absent a compelling government interest and a showing that the action is the least restrictive means available for promoting that interest. The Tenth Circuit was the first appeals court to say that a corporation likely is a “person” entitled to assert rights under RFRA.

In contrast, in Conestoga Wood Specialties v. Sebelius, the Third Circuit held that the plaintiffs, a Mennonite Christian family and its woodworking business, were unlikely to succeed on the merits of their RFRA and First Amendment free exercise claims, given that “for-profit, secular corporations cannot engage in religious exercise.”

The questions in the two cases, although similar, aren’t identical. The Obama administration in Hobby Lobby asked the court to decide “whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.”

The question presented by the Conestoga plaintiffs is “[w]hether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the ACA.”

The high court consolidated the cases for a one-hour oral argument. The date of the argument hasn’t yet been announced.

Government Players React

Reaction to the Supreme Court’s grant of review was positive, although speakers disagreed on the eventual outcome of the cases.

In a statement by White House Press Secretary Jay Carney, the administration said it is “confident the Supreme Court will agree” with its position that the requirement that corporations include birth control coverage in insurance plans they make available to their employees is “lawful and essential to women’s health.”

The White House declined to comment on the specifics of the case, but said the mandate is designed to ensure that a woman’s health-care decisions are made between her and her doctor. “The President believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women,” the statement said.

House Speaker John Boehner (R-Ohio) said in a statement that he is “pleased the Supreme Court has decided to address this important issue.” Boehner called the mandate “an attack on religious freedom” and said he is “hopeful” the Supreme Court will find in favor of the corporations. “Faith-based employers, including Catholic charities, schools, universities, and hospitals, should not be forced to provide services that contradict their faith,” he said.

Interest Groups Weigh In

The Supreme Court’s announcement also drew the attention of a number of special interest groups.

For example, the Constitutional Accountability Center in Washington said: “With courts splitting on this important question, the Court had to take this case.” CAC added that “the Justices should firmly reject the assertion by Hobby Lobby and other corporations that the ACA’s contraception mandate is unconstitutional.”

“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,” CAC said.

Hobby Lobby’s lead attorney, S. Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, called the court’s action “a major step” for the companies and their owners, the Green family, “in an important fight for Americans’ religious liberty.” In a Becket Fund statement, Duncan expressed hope that “the Supreme Court will clarify once and for all that religious freedom in our country should be protected for family business owners like the Greens.”

Jay Sekulow, chief counsel of the American Center for Law & Justice, which represents the plaintiffs in other cases challenging the mandate, said in a statement that he is “extremely pleased” by the grant of review. “For the government to mandate that a company or its owner acquire a health insurance product that violates their religious beliefs is not only offensive but unconstitutional as well,” Sekulow said. “Such a mandate is an unconstitutional power grab by the federal government and we’re hopeful that the high court will move to protect the religious freedom of Americans.”

Women’s rights and civil rights groups also expressed pleasure at the court’s action, along with a desire that the Supreme Court will declare the mandate enforceable against the corporations.

Louise Melling, deputy legal director of the American Civil Liberties Union, said: “[R]eligious freedom does not include the right to impose your beliefs on others. It does not mean that businesses can refuse to comply with the law based on their religious beliefs, particularly where that means discriminating against their employees.”

Nancy Northup, chief executive officer of the Center for Reproductive Rights, said “for-profit companies 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.” She added that the court “should use this opportunity to strongly reinforce the bedrock principles of individual liberty on which this nation was founded, and to establish clear limits on the assertion of corporate rights in defiance of federal law and individual rights.”

NARAL Pro-Choice America President Ilyse Hogue said she is “pleased that the Supreme Court will finally lay to rest the question of whether women’s bosses get to decide if we deserve contraceptive coverage.” She added: “[I]n a country where over 99 percent of women report using birth control at some point in our lives, bosses have no business imposing their own politics on their employees’ health and decisions.”

Debra L. Ness, president of the National Partnership for Women& Families, said there is “a tremendous amount at stake” in these cases. The court’s ultimate decision “will have a profound impact on women’s health and well-being,” she said.