Supreme Court Takes Up New Religious Challenge To The Affordable Care Act

In what seems destined to be a blockbuster decision in the making, the Supreme Court has accepted a religious challenge to the Affordable Care Act. The decision could force a reexamination of the Court controversial 2010 ruling in Citizens United in considering whether companies have religious rights to match the speech rights embraced by the Court. The case involves objections from businesses and individuals like David Green, founder and CEO of Hobby Lobby, who insist that the Act’s required support for contraceptive services violates religious rights. Two cases were accepted: Sebelius v. Hobby Lobby Stores, Inc. (13-354); and Conestoga Wood Specialties Corp. v. Sebelius (13-356). I will be discussing the cases this morning on CNN.

Under the ACA, non-for-profit religious corporation have an exemption. However, this is a for-profit company that is run according to the family’s religious beliefs. As a large employer, Hobby Lobby is required to provide a range of no-copay contraceptive services. Some 50 companies have challenged the ACA around the country.

Green says that “We do everything we possibly can to be a help to our employees of how that they can structure their life based on biblical principles.” While he does not object to all aspects of the required services, he believes that the government should not dictate such matters to companies. That argument succeeded in Denver with the United States Court of Appeals for the Tenth Circuit. The court ruled that there is no reason why corporations enjoy speech rights under the first amendment but not religious rights.

The decision created a classic split in the circuits. In Hobby Lobby v. Sebelius, the 10th Circuit treated corporations as persons for the purposes of the Religious Freedom Restoration Act and Free Exercise Clause. However, in Conestoga Wood v. Sebelius, the Third Circuit ruled that they are not persons for these purposes since corporations do not engage in religious practices or prayer and RFRA does not apply to corporations.

The case could challenge the 5-4 majority of Citizens United, particularly with Justice Anthony Kennedy. There is a sticker shock aspect to the case in terms of its potential if companies can make such religious objections to uniform national regulations. The decision could also shed light on the Court’s view of growing conflicts between non-discrimination laws and religious believes, a subject that I have previously written about in columns and blogs. If corporations can refuse to comply with the ACA on religious grounds, can a bakery refuse to prepare a cake for a same-sex couple on the same grounds? It will also likely interpret the scope and application of the Religious Freedom Restoration Act.

The case places the interests in a uniformity of services for women against the religious rights of certain companies. Green notably does not object to 16 of 20 preventive contraceptives required in the mandate but refuses to provide or pay for four of the drugs including Plan B and Ella — or morning-after pills and the week-after pills. His highly specific objection could be used by the Administration to show the implications of recognizing religious rights in companies with every company applying different standards and preconditions for employees.

This has the makings of a major decision that could not only interpret the scope of the ACA but more generally applicable religious rights for companies.