WASHINGTON -- The Supreme Court added a new legal challenge Tuesday
to the legislative and political battles raging over President Obama's
embattled health care law.
The justices agreed to consider whether
for-profit corporations whose owners oppose abortion on religious
grounds must abide by the law's mandate that health insurance policies
include free coverage of government-approved forms of contraception.
the first legal challenge to reach the high court since it upheld the
law 17 months ago in a 5-4 decision written by Chief Justice John
Roberts. While a loss for the government wouldn't strike down the law
itself, conservatives still seething over Roberts' rescue of Obamacare
say the case offers Roberts an initial chance to rule against it.
its attachment to the health care law, however, the legal challenge is
significant in its own right because it will answer a fundamental
question with far-reaching consequences: Can corporations pray? Until
now, no court has granted religious rights under the First Amendment's
"free exercise clause" to for-profit businesses.
whose lawsuits were chosen over some 40 others says, in essence, that
they do pray. The cases were filed by Hobby Lobby, a chain of more than
500 arts-and-crafts stores with some 13,000 full-time employees, and
Conestoga Wood Specialties, a woodworking business run by a Mennonite
Hobby Lobby closes on Sundays and funnels millions of
dollars in profits to ministries. Its web site proclaims its commitment
to "honoring the Lord in all we do by operating the company in a manner
consistent with biblical principles."
To avoid promoting alcohol,
for instance, Hobby Lobby doesn't sell shot glasses. And to avoid
promoting abortion, it doesn't cover drugs or devices which it claims
are capable of terminating a pregnancy, including the morning-after pill
known as "Plan B." The government says none of the mandated drugs are
The health care law says companies with 50 or more
workers that offer health insurance must cover contraceptives as part
of a preventive care package for women. Churches and other houses of
worship were excluded from the mandate, and some religious institutions,
such as universities, were allowed to have insurers offer the benefit
The law's defenders say the exclusions should not extend
to corporations like Hobby Lobby and Conestoga Wood. "Corporations
don't pray ... they don't have a religious conscience," says David Gans of
the Constitutional Accountability Center, a liberal law firm and
advocacy group. "These are all human attributes that don't apply to
Combined with smaller companies and those who did
not change their insurance plans since the law was implemented, up to
one-third of Americans are covered by exempt plans. But larger
for-profit corporations must comply or face fines of $100 per day per
employee, which could total $475 million a year in Hobby Lobby's case.
An alternative -- dropping employee health insurance altogether -- would
cost $26 million in annual penalties.
Hobby Lobby, Conestoga Wood
and many other companies that have challenged the contraception mandate
say that's a violation of the Religious Freedom Restoration Act, passed
by Congress in 1993 to protect "a person's exercise of religion" from
government intrusion. Some of the cases also raise constitutional
challenges as well.
"As the federal government embarks on an
unprecedented foray into health care replete with multiple overlapping
mandates, few issues are more important than the extent to which the
government must recognize and accommodate the religious exercise of
those it regulates," the company argues in its brief.
The Supreme Court already has established that corporations have free-speech rights. In Citizens United v. Federal Election Commission (2010), the justices struck down government restrictions on corporate and union political advertising.
a generation earlier in 1990, the court ruled in an Oregon case that
the government does not have to protect religious beliefs when they
conflict with existing laws. That case led Congress to pass the
Religious Freedom Restoration Act in an effort to tilt the balance back
Now comes the question that subjected
Republican presidential candidate Mitt Romney to ridicule last year: Are
Appeals courts have split down the middle,
virtually forcing the Supreme Court to settle the matter. Two federal
circuit courts have said private companies should be able to sidestep
contraception coverage on religious grounds, including Hobby Lobby. Two
have said exactly the opposite; Conestoga Wood lost its case. And one
ruled earlier this month that companies cannot exercise religious
beliefs in that way, but their owners can.
The 10th Circuit Court
of Appeals ruled for Hobby Lobby in a case from Oklahoma, where the
company is based. The court said the Obama administration "has given us
no persuasive reason to think that Congress meant 'person' ... to mean
anything other than its default meaning in the Dictionary Act - which
includes corporations regardless of their profit-making status."
in a dissent this month from another decision against the contraception
policy, Judge Ilana Rovner of the 7th Circuit appeals court warned that
granting religious rights to corporations could lead to denials of
coverage for stem cell therapy, unpaid family leave for gay parents, or
even traditional medicine, depending on company owners' religious
The U.S. solicitor general's office warned in its brief
asking the Supreme Court to take the case that a victory for the
companies would transform the Religious Freedom Restoration Act "from a
shield for individuals and religious institutions into a sword used to
deny employees of for-profit commercial enterprises the benefits and
protections of generally applicable laws."