Supreme Court Hears Arguments Challenging ACA’s “Contraception Mandate”

By Melissa Donze on March 28, 2014 in Policy/Advocacy

Kayla HeadshotBy Kayla Patterson, Pedro Zamora Public Policy Fellow, AIDS United

The Supreme Court heard oral arguments this Tuesday in a challenge to the Affordable Care Act’s “contraception mandate.” The Court will decide the federal government can mandate that private businesses owned provide health plans with no-cost coverage for contraception, even if doing so conflicts with the employer’s religious beliefs.

Under the Affordable Care Act, the so-called “contraception mandate” requires companies to provide health insurance plans with no-cost access to 20 forms of birth control for female employees. The challengers, two devoutly religious families and their private businesses, have an objection to four forms of birth control in the mandate: two brands of intrauterine devices (IUDs) and two brand of the “morning after” pill.  The families believe life begins at conception, and by covering those four forms of birth control, they would be “complicit in abortion.”

Those watching the case closely anticipate the Court to draw on precedent from certain cases examining the role of religion and employers’ rights. In 1990, the Supreme Court heard Employment Division v. Smith, ruling  that laws that apply equally to everyone do not have to make exceptions for religion. In response to Smith, Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993, which states that the government cannot substantially burden a person’s exercise of religion unless that burden uses the least restrictive means to promote a very important interest of the government. The plaintiffs in this week’s hearings argue that the contraception mandate violated RFRA, thereby asserting that corporations are “people” and protected under the law.

Walter Dellinger, former solicitor general for President Bill Clinton, expressed to the difficulty of establishing that a corporation has a conscience that is being violated or overridden. If the challengers win, however, the Supreme Court could extend First Amendment protections to to corporations and expand RFRA protection for “persons” to include for-profit companies. Lyle Denniston, a journalist from, stated the two cases raise the profound question of whether a private, for-profit corporation can “exercise” religion and, if it can, to what extent current laws protect a corporation’s religious freedom.

The contraception mandate was prepared by the Department of Health and Human Services (HHS) and follows a report from the Institute of Medicine (IOM), a non-profit division of the National Academy of Science. The IOM concluded that contraceptives are an effective tool to reduce unwanted pregnancies and reduce the number of abortions, but that many women do not have the resources to purchase contraceptives they need or those that will be most effective.

If the challengers win, female workers of the two companies involved and of other companies whose owners cite religious objections would have to personally cover costs of at least some birth control services. According to some women’s rights groups, millions of women could be affected. There is yet another possible alarming outcome: companies could impose their own religious beliefs on their employees in a way that substantially burdens an employee’s right to make her own decision on whether she wants to use contraception.

Justices Elena Kagan and Sonia Sotomayor both expressed concern that an exemption from providing birth control services to female employees could lead to companies finding other medical and non-medical services religiously objectionable. Though the Patient Protection and Affordable Care Act has a discrimination provision, it is unclear how far it will reach if the challengers were to prevail. There is the possibility that employers could seek exemption from HIV care coverage on religious grounds, as the virus remains highly stigmatized.

Justice Kennedy, though making arguments for both sides throughout the oral arguments, questioned if religion of the employers trumps employee’s religious views that may not be the same. Ultimately, Justice Kennedy emerged as the likely deciding vote.

To read the transcript of Tuesday’s arguments, click here. An audio recording of the Sebelius vs. Hobby Lobby Stores, Inc. hearing is posted here.


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