A guide to the Supreme Court’s upcoming birth control decision

Washington PostJune 23, 2014Articles

Two Junes ago, we were waiting on a major Supreme Court decision on Obamacare. It’s funny how history repeats itself.

Any day now, the high court is set to rule on challenges to the administration’s requirement that employer health plans provide a wide range of birth control at no-out-of-pocket cost. The challenges, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, was were brought by two employers who argue the contraception mandate violates their religious freedom.

An adverse ruling against the contraception mandate wouldn’t hurt the core of Obamacare, but it would be the first part of the law scaled back by the Supreme Court since it decided two years ago that the federal government couldn’t force states to expand Medicaid. As we wait for a Supreme Court decision, here’s a primer on the case.

What’s the contraception rule?

The Affordable Care Act requires health plans to provide preventive benefits without cost-sharing, and the Obama administration in 2011 adopted an Institute of Medicine’s recommendation that preventive benefits include a full range of Food and Drug Administration-approved contraception. When the requirement took effect in August 2012, the Obama administration said47 million women were enrolled in health plans affected by the rule.

Facing pushback from Catholic groups, the administration in early 2012offered a work-around for religiously affiliated organizations, like hospitals and colleges, that would allow their employees to obtain free contraception coverage directly from insurers. That carveout has also been challenged in the courts, but the Supreme Court case doesn’t address the accommodation for these groups.

Who are the companies?

Hobby Lobby is a chain of craft stores owned by Evangelical Christians who say they run their business on Christian principles, and Conestoga is a Mennonite-owned company specializing in wood cabinets. The owners don’t object to all types of birth control, but they’re opposed to intrauterine devices and forms of emergency contraception, like Plan B and Ella. Dozens of other for-profit companies have also challenged the rule, but the court is only considering the challenge from these two.

What’s at stake

This is the first time the court will consider whether the Constitution or the Religious Freedom Restoration Act, protecting an individual’s exercise of religion, applies to for-profit companies and their owners. The RFRA, a 1993 law, says the government can’t impose a “substantial burden” an an individual’s religious exercise without a “compelling governmental interest” that’s the least-obstructive way of achieving the government’s goal.

Supporters of the contraception requirement argue that for-profit companies don’t have the same religious protections as individuals and that the exemption would be a burden on workers who don’t share their employers’ religious beliefs. They’ve also made the slippery-slope argument: If employers can claim a religious exemption to providing contraception, can they also refuse to pay for other health-care services, like vaccines, on the same grounds? The companies argue that wouldn’t be the case.

How did oral arguments go?

The Supreme Court justices “seemed sympathetic” to businesses’ arguments, wrote the Washington Post’s Supreme Court reporter Robert Barnes after the March 25 hearing. The five conservative justices appeared to agree that two companies could be covered by the federal law providing religious protections to individuals, and it seemed that Justice Anthony M. Kennedy will be the swing vote.

However, oral arguments aren’t a reliable predictor of how the justices will decide. Consider that justices two years ago seemed ready to throw out Obamacare’s individual mandate — perhaps the entire health-care law. And we all know how that turned out.

Does Obamacare still face any other legal challenges?

Yes, including one that would deal a potentially much bigger blow to the law. A few appellate courts, including the one in the District of Columbia, may soon decide whether people in 36 states with a federal-run exchange are eligible for premium subsidies. Some GOP lawmakers are also challenging a rule allowing members of Congress and their aides to receive subsidized coverage.

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