The Supreme Court Prepares to Consider the Contraceptive Mandate

The Supreme Court Prepares to Consider the Contraceptive Mandate

The Supreme Court is all but set to hear a case challenging a provision of the Affordable Care Act that requires insurance plans to cover contraceptives for women. There are more than 40 suits from private, for-profit employers in the courts right now challenging that mandate on religious liberty grounds, an issue that has widely divided the federal appeals courts. Most expect the high court to take up the federal government's appeal against a court ruling in favor of the "biblically founded" Hobby Lobby arts and crafts chain. The court will likely announce their intention to hear the case, or one like it, on Tuesday. 

At issue in the Hobby Lobby case is whether the 1993 Religious Freedom Restoration Act applies to individuals and corporations. The 10th Circuit Court of Appeals decided that Hobby Lobby is indeed protected under that law, citing the Supreme Court's Citizens United decision. The SCOTUS decision, among other things, gave corporations more room to claim "personhood." Religious organizations and religiously-affiliated non-profits are already exempted from the contraceptive mandate. The federal government, as MSNBC's Irin Cameron explains, wants the Supreme Court to settle both the religious freedom and corporate personhood claims at issue here with a decision on the Hobby Lobby case: 

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But if the Court does take up one of the birth control refusal cases and eventually rules that a corporation has the same religious liberty rights as a person, the longer-term impact on corporate regulations could be sweeping. That’s what Solicitor General Donald Verrilli warned in his request that the Court settle the question through the Hobby Lobby case. The Religious Freedom and Restoration Act, enacted to protect minority interests, would be “transform[ed] 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.”

Hobby Lobby also wanted SCOTUS to take up its case. In a brief filed with the court, Hobby Lobby explained that its current plan excludes coverage for Plan B, Ella, and two types of intrauterine devices because the company believes those forms of contraception "can prevent an embryo from implanting in the womb." The company's request for an exemption is limited to those four products, which they call "abortifacients" in the briefing. Some of the other cases hoping for a Supreme Court hearing are less limited in scope.

For the record, Physicians for Reproductive Health, the American College of Obstetricians and Gynecologists, and other groups with medical expertise have stated to the court that the legal and medical definition of pregnancy begins at the implantation of the embryo, and not at fertilization. That's "regardless of an individual’s personal or religious beliefs or mores" otherwise, the groups added. A handful of anti-abortion and Catholic groups filed a separate brief claiming that it is "scientifically undisputed" that life begins at fertilization, in line with the religious beliefs promoted by Hobby Lobby.  

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If the Supreme Court does indeed take up the Hobby Lobby case, arguments are expected in March. The court would likely issue its decision in June. 

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