Today the Supreme Court agreed to hear two cases that challenge Obamacare's contraceptive mandate as a violation of religious freedom. Last year the Court upheld the requirement that individuals obtain government-approved medical coverage by treating it as an exercise of the tax power. This will be the Court's second opportunity to assess the legality of the Patient Protection and Affordable Care Act.
In one of the cases the court plans to hear, Sebelius v. Hobby Lobby Stores, David and Barbara Green, who own the Oklahoma-based chain together with their three children, argue that forcing them to provide their employees with health plans that cover certain forms of contraception violates the Religious Freedom Restoration Act (RFRA). The Greens specifically object to four kinds of contraception—Ella, Plan B, and two IUDs—that work by preventing implantation of fertilized ova, which they view as morally equivalent to abortion.
RFRA, which Congress passed almost unanimously in response to a 1990 Supreme Court decision that loosened the restraints on laws that limit religious freedom, says "government shall not substantially burden a person's exercise of religion" unless the burden is "narrowly tailored" to serve a "compelling" interest. Last June the U.S. Court of Appeals for the 10th Circuit ruled that the contraceptive mandate probably fails this test, especially since it already exempts as many as 100 million health plans, including those offered by churches and other nonprofit religious organizations. The court also noted that the Greens have no religious objection to 16 of the 20 contraceptives covered by the mandate.
The other challenge to the contraceptive rule, Conestoga Wood Specialties v. Sebelius, involves a Pennsylvania cabinet company owned by the Hahns, a Mennonite family. The Hahns, like the Greens, object to contraceptives that prevent implantation rather than fertilization. But in July the U.S. Court of Appeals for the 3rd Circuit rejected their RFRA claim, concluding that their business is not covered by the statute because it is a for-profit corporation and therefore does not qualify as a "person." The Court held that "a for-profit, secular corporation cannot engage in the exercise of religion."
The 10th Circuit rejected this distinction. "It is beyond question that associations—not just individuals—have Free Exercise rights," it said, quoting a 1984 Supreme Court decision: "An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends [was] also guaranteed." If people do not lose their religious freedom when they exercise it through nonprofit corporations (such as churches) or for-profit businesses that are not incorporated, the 10th Circuit asked, why should they sacrifice this right when they combine the corporate form with a profit motive? For example, "Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?" The 10th Circuit noted that the Supreme Court, in the 2010 case Citizens United v. FEC, overturned restrictions on political speech by both commercial and nonprofit corporations, recognizing them as tools that individuals use to exercise their First Amendment rights.
In a 2007 Reason article, I explored RFRA's implications for religious rituals involving prohibited drugs.