On Tuesday, the Supreme Court will hear 90 minutes of argument concerning two historic challenges to the contraception rule of the Affordable Care Act: one from Hobby Lobby Stores, an Oklahoma-based craft supply chain store; and another from Conestoga Wood Specialties Corp., a Pennsylvania-based furniture manufacturer. What’s at stake is not whether a woman has the right to use contraceptives. Instead, this case is about, according to a blog post sponsored by Bloomberg Law, “whether the federal government can force employers to violate their good-faith religious belief and pay for the contraceptives of others.”
Under the health care law, employer-sponsored health plans must offer a range of contraception at no charge to women; this includes 20 Food and Drug Administration-approved drugs and devices. Nearly 50 businesses, of which Hobby Lobby and Conestoga are among the largest, have sued based on their objections to paying for all forms of birth control. In fact, the businesses agree to paying for the majority of contraceptive drugs and devices covered under the law.
In particular, the owners of Hobby Lobby, David and Barbara Green, employ more than 13,000 people and run their business in a Christian manner, which includes playing faith-based music in their stores and closing on Sundays. Noting the federal mandate to provide coverage of contraceptives, the Greens objected on the grounds of their faith. In their words: “While the Green family has no moral objection to providing 16 of the 20 FDA-approved drugs and devices that are part of the federal mandate, providing drugs or devices that have the potential to terminate a life conflicts with their faith.”
Specifically, they don’t want to cover the emergency contraceptive pills, Plan B, and Ella, and intrauterine devices (IUDs), which they believe are abortifacients — something that induces a miscarriage. In September 2012, they filed suit to defend their right to religious freedom under the Constitution and federal law. Under the ACA, a business can choose to not offer health insurance and pay a penalty of $2,000 a year for each employee. Along with Hobby Lobby, Conestoga, which employs 950 people in making wood cabinets and is owned by a family of Mennonite Christians, say they want to provide health care coverage to their employees just not these four particular contraceptive products which violate their beliefs.
Essentially, then, the companies are arguing that the 1993 Religious Freedom Restoration Act (RFRA), a federal law on religious freedom, extends to businesses as well as individuals. The justices, then, must rule on whether profit-making businesses have religious rights. Various individuals and groups, including Democratic and Republican Senators and the American Civil Liberties Union, have filed amicus curiae briefs — legal statements written by “friends-of-the-court” offering an opinion on the case; two dozen briefs were written in support of the government, while five dozen briefs back Hobby Lobby and Conestoga. Some who argue in favor of the administration say if the companies win, their female employees would be prevented from making decisions about birth control based on what's best for their health.
In today’s argument, Paul Clement will represent the businesses, while Solicitor General Donald Verrilli Jr. will represent the government in these arguments. The Supreme Court will issue a decision any time between the end of oral arguments and the conclusion of its current term in June.