The justices have finally agreed to settle the dispute over the Affordable Care Act's contraception mandate -- whether the health of women covered is paramount, as the Obama administration argues, or whether the owners of for-profit businesses may use religious objections to avoid providing contraception insurance.
The mandate is not in the language of the Affordable Care Act but in regulations issued by the Department of Health and Human Services implementing the act.
Churches, their "integrated auxiliaries," and conventions or associations of houses of worship, are exempted from having to provide their employees with contraception coverage. Religious institutions not affiliated with a house of worship, such as hospitals, charities or schools, are not exempt, but under a compromise offered by the administration do not have to pay for contraceptive coverage. Their insurers have to pay for the coverage.
After a conference behind closed doors two days before Thanksgiving, the justices said they would hear argument in two cases -- one in which an appeals court ruled for the challengers, and one in which the Obama administration prevailed. The two cases were consolidated. Both cases would seem to turn on the First Amendment's free exercise of religion clause, and the Religious Freedom Restoration Act of 1993
RFRA prohibits the federal government from placing substantial burdens on "a person's exercise of religion,'" unless government can demonstrate that applying the burden is the 'least restrictive means of furthering ... [a]compelling governmental interest.'"
Though not yet scheduled, the consolidated case should be argued later this term.
The Affordable Care Act, called Obamacare by nearly everyone, got a much needed shot in the arm in 2012 when the high court ruled 5-4 to uphold the law's mandate requiring people without insurance, but who can afford it, to acquire insurance. Conservative Chief Justice John Roberts, joined by the court's four liberals, said the penalty for failing to sign up for insurance was allowed under Congress' power to collect taxes.
But since then Obamacare has been battered by the bungled roll-out of the Internet website designed to let people sign up for insurance exchanges, and polls show President Obama's approval rating plummeted when many people lost their bargain basement health insurance plans because they didn't meet the tougher standards in the law.
If the Supreme Court sides with business owners on contraception coverage, it would be huge blow to Obama's signature accomplishment, one from which it might not recover.
Some U.S. courts of appeal have refused to side with business owners. Some have not.
Last July, the 10th U.S. Circuit Court of Appeals based in Denver ruled for two Oklahoma companies, Hobby Lobby, an arts supply chain, and Mardel, a Christian bookstore chain. Both companies are secular, for-profit entities.
The Green family, which owns both businesses, are Baptists.
"Their owners, the [Green family], run both companies as closely held family businesses and operate them according to a set of Christian principles," the opinion from the 10th Circuit said. "They contend regulations implementing the 2010 Patient Protection and Affordable Care Act force them to violate their sincerely held religious beliefs. In particular, the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored healthcare plan."
The July 1 date has since been postponed by the administration to Jan. 1.
Among those services "are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith," the opinion said. So-called morning after pills are actually taken immediately after intercourse to disrupt fertilization or ovulation.
If the U.S. Supreme Court recognized corporations had free speech rights in 2010's Citizens United vs. FEC, it followed that corporations also had religious freedom rights, the opinion said.
"We hold that Hobby Lobby and Mardel are entitled to bring claims under [the federal Religious Freedom Restoration Act], have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm," the appeals court said.
The five-judge appeals court majority agreed the businesses were likely to win on the merits, though the judges agreed or disagreed with bits and pieces of the opinion.
The Obama administration filed its own petition to the U.S. Supreme Court asking for review of the Hobby Lobby ruling.
The administration petition points out Hobby Lobby actually supplied contraception coverage for its employees until the mandate was issued -- then suddenly reversed itself for Obamacare.
"'[T]he Greens believe that human life begins at conception,' that is, 'when sperm fertilizes an egg,' and they therefore oppose certain contraceptives on the ground that they prevent implantation of a fertilized egg," the administration petition said.
"After learning about the contraceptive-coverage requirement, Hobby Lobby 're-examined its insurance policies,' discovered that they already covered certain [Food and Drug Administration]-approved contraceptives to which the Greens objected, and proceeded to exclude those contraceptives from the Hobby Lobby plan."
In a rundown of what the Affordable Care Act requires, the administration said Congress was responding "to a legislative record showing that 'women have different health needs than men, and these needs often generate additional costs." Women "'of childbearing age spend 68 percent more in out-of-pocket healthcare costs than men.'"
The administration points out that half of all pregnancies in the United States are unplanned.
The other case accepted by the justices involves a furniture factory in Pennsylvania owned by Mennonites.
In a petition to the Supreme court, "a family of five Mennonites and their closely held, family-run woodworking corporation, object as a matter of conscience to facilitating contraception that may prevent the implantation of a human embryo in the womb, and therefore brought this case seeking review of the [contraception] mandate under the free exercise [of religion] clause of the First Amendment and the Religious Freedom Restoration Act of 1993."
Judges of the 3rd U.S. Circuit Court of Appeals "rejected these claims, carving out an exception to the scope of religious free exercise," the petition said. "The court denied that either 'a for-profit, secular corporation' or its family owners could claim free exercise rights. In so holding, the 3rd Circuit expressly rejected contrary decisions" in other appeals courts.
"Petitioners Norman and Elizabeth Hahn and their three sons, Norman Lemar, Anthony and Kevin Hahn, are devout Mennonite Christians who integrate their faith into their daily lives, including their work," the petition said. "As part of their Mennonite faith, they oppose taking any human life. The Hahns view artificially preventing the implantation of a human embryo as an abortion. As the government has conceded, a number of FDA-approved contraceptives may work by inhibiting the implantation of an embryo in the womb."
The White House welcomed the decision by the U.S. Supreme Court to hear argument on the Affordable Care Act's contraception mandate.
"The healthcare law puts women and families in control of their healthcare by covering vital preventive care, like cancer screenings and birth control, free of charge," the White House said in a statement. "Earlier this year, the Obama administration asked the Supreme Court to consider a legal challenge to the healthcare law's requirement that for-profit corporations include birth control coverage in insurance available to their employees. We believe this requirement is lawful and essential to women's health and are confident the Supreme Court will agree."
So did an advocate for the objecting business owners.
"We look forward to the Green and Hahn families finally having their day before the Supreme Court. They deserve the chance to win back freedom from the abortion pill mandate, and the freedom to make a living in their family business without being forced by the government to violate their faith." Maureen Ferguson, a senior policy adviser with The Catholic Association, said in a statement.
In an earlier white paper, the White House broke down the mandate:
-- Churches and other houses of worship are exempt from the requirement to offer insurance that covers contraception.
-- "No individual healthcare provider will be forced to prescribe contraception: The president and this administration have previously and continue to express strong support for existing conscience protections. For example, no Catholic doctor is forced to write a prescription for contraception."
-- No one will be forced to buy or use contraception. The regulation applies only to what insurance companies cover. "Under this policy, women who want contraception will have access to it through their insurance without paying a co-pay or deductible."
-- "Drugs that cause abortion are not covered by this policy: Drugs like RU486 are not covered by this policy, and nothing about this policy changes the president's firm commitment to maintaining strict limitations on federal funding for abortions. No federal tax dollars are used for elective abortions."