Four years after its initial passage, lawmakers and lawyers are still talking about — and making pretty big decisions regarding — the Affordable Care Act. Today was a big day for a case that could dramatically affect interpretation of the contraception requirements of the health care mandate, as well as the right of private companies and corporations to invoke religious beliefs in response to federal law.
The justices heard 90 minutes of oral arguments regarding the cases Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. The two challengers claim that because the companies have religious foundations (the owners are Southern Baptist and Mennonite, respectively), they cannot be required to provide insurance that includes birth control they say causes abortions, specifically IUDs and the morning after pill (though most reports refute those claims). The justices will likely rule on the case in June, and it’s hard to predict the outcome after today’s hearings.
As predicted, it appears that Justice Anthony Kennedy will be a swing vote in the case. Justices Scalia, Alito and Thomas appeared to stand with the challengers, as is expected of those conservative justices. All three women justices spoke strongly on the side of the government. They, like 84 percent of women voters in a recent poll, believe women should be able decide when and how to use birth control, not those women’s bosses.
The New York Times does a good job of breaking down the current state of the ACA and these cases. Pew also has some helpful, more detailed information on the background and context of the case, but I’m most interested in their explanations of the potential affects depending on how the court rules.
If the government prevails and the Supreme Court holds that RFRA does not cover for-profit entities or their owners or managers, the decision would immediately end all religious-liberty-based challenges to the contraception mandate by for-profit businesses. It also would bar businesses from invoking RFRA in lawsuits challenging other laws. Such a ruling would not, however, have any impact on the pending challenges to the contraception mandate by religious nonprofit organizations.
RFRA is the Religious Freedom Restoration Act, which in 1993 “directs courts to exempt any party who can show that the challenged law or government action substantially burdens his or her religious practice, unless the government shows that the law advances a compelling interest that cannot be achieved without imposing the burden on the person’s free exercise of religion.” One of the big questions in this case is whether private, non-religious corporations have that same right not to follow laws or government acts that burden their religious practice, since the RFRA was designed to protect individuals. But this is a post-Citizens United world. If the court rules in favor of the companies, it would open the door for companies to object to following any laws they feel are contrary to their religion — Kagan pointed out child labor laws, sex discrimination laws, and minimum wage laws as potential targets. Another obvious potential target is federal laws that require equal benefits and protections for queer individuals and couples. Plenty of businesses already want to invoke religion to discriminate against gay people, as was made clear in Arizona last month.
Of course, there are all sorts of in between places where the justices could land, some that dramatically expand the scope of religious liberty and others that maintain the status quo. The court could rule, for example, that RFRA does apply to companies but that the birth control provision does not count as a substantial burden because the employer is so far removed from the provision of birth control from insurance company to individual. That would make it hard for the religious non-profits gunning for exemptions to the birth control part of the mandate in other cases to succeed.
The outcome of the case matters greatly not just for women who want to take birth control while working for companies with religious owners, but anyone with a religious employer who wants equal rights and protections under the law. It’s endlessly frustrating to watch corporations and individuals invoke the Constitution and the Gospel to justify discrimination, when both those documents inherently aim to extend freedom and justice to all people. Of course constitutional interpretation is far more complicated than that, but I’m pretty sure the Founding Fathers would be like, “Go home and make a foam picture frame Hobby Lobby, you’re drunk.”