The U.S. Supreme Court hears arguments Tuesday in the latest challenge to the Obama health care overhaul.
This time the issue is whether for-profit corporations, citing religious objections, may refuse to provide some, or potentially all, contraceptive services in health plans offered to employees. It is a case that touches lots of hot-button issues.
In enacting the ACA, Congress required large employers to provide basic preventive care for employees. That turned out to include all 20 contraceptive methods approved by the Food and Drug Administration.
Under the law, religious nonprofits were exempted from this requirement, but for-profit corporations were not.
The lead plaintiff before the court is Hobby Lobby Inc., a chain of 500 arts and crafts stores with 13,000 employees. The owners are conservative Christians who object to certain methods of birth control — IUDs and morning-after pills — because they can interfere with the creation of life once an egg is fertilized.
"We believe that the principles that are taught scripturally is what we should operate our lives by ... and so we cannot be a part of taking life," explains Hobby Lobby President Steve Green.
"It's our rights that are being infringed upon to require us to do something against our conscience," adds CEO and founder David Green.
Shifting The Burden To Employees
The government, however, points to a long line of Supreme Court cases that take a contrary view, declaring that the court has never found a for-profit company to be a religious organization for purposes of federal law. Indeed, the Justice Department says in its briefs that the government would be unable to function if religious beliefs could be the basis for corporations' refusing to comply with generally applied laws — be they child labor laws, immunization laws, laws that mandate serving racially mixed groups or income tax laws that require everyone to pay, no matter how the government spends the money.
Furthermore, the government argues that Hobby Lobby, in claiming it is exempt from some requirements of the health care law, is shifting the burden to its employees.
"This is an earned benefit, not a freebie. And it's an earned benefit to which women contribute their share of the premium," said former Clinton administration Solicitor General Walter Dellinger, who filed a brief siding with the government.
"Here the 13,000 employees of the Hobby Lobby corporate enterprise aren't and should not be expected to share the religious beliefs of the Greens. What you really have is one family attempting to utilize their economic leverage to impose their religious beliefs on others," Dellinger continued.
Not so, says former Bush administration Solicitor General Paul Clement, who will argue Tuesday's case in the Supreme Court on behalf of Hobby Lobby. He observes that the Constitution, and federal statutes, bar only the government from intruding on the free exercise of religion.
"The only government action here is the government action that forces the Greens to provide these contraceptive devices that they find morally objectionable, he says. "The federal government for the first time has decided that they are going to force one person to pay for another person's not just ... hip replacement, but something as religiously sensitive as contraception and abortifacients."
Convoluted Legal History
Tuesday's case involves not just the Constitution but a statute and a somewhat convoluted Supreme Court history. Until 1990, the court applied a tough test to examine laws that disadvantaged people's religious beliefs.
Then, in 1990, the justices changed direction. In a case involving penalties for the use of peyote as part of a Native American religious ceremony, the court ruled that as long as a generally applicable law — that is, a law that applies generally to all citizens — is neutrally applied, it is constitutional, even though it may have some unhappy consequences for some believers.
Congess hated the decision, and in 1993 passed the Religious Freedom Restoration Act. Under the act, if a law imposes a substantial burden on the free exercise of religion, it has to meet a high threshold for justification.
Hobby Lobby owners contend that the ACA contraception mandate imposes a substantial burden on them because failure to comply results in big fines — $26 million a year for Hobby Lobby if it opts out of providing insurance altogether. Supporters of the mandate counter that $26 million may be a lot of money, but it is less than the company currently spends on insurance.
Of course, Hobby Lobby points out that it wants to provide insurance, that having insurance fits in with both its religious ideas and its good business practices.
The government replies that when you are a commercial enterprise, you may have to make choices. Here, either provide the insurance or pay a fine and let your employees go to the health care exchange to buy insurance that may include public subsidies.
The Justice Department cites as an example a Supreme Court decision involving an Amish cabinetmaker. He was required to pay Social Security taxes for his employees, even though he viewed such payments as against his religion and even though the Social Security law at the time had significant exemptions.
The company argues, however, that the mandate is not generally applicable, since the law temporarily grandfathers out health plans that have not changed since the law was adopted.
"We would never have said, well, we don't want employers to discriminate on the basis of race, but as long as they continue their existing employment practices, they can get away with it. We would never have said that because that prohibition was viewed by the government itself as absolutely compelling," says Clement.
A Public Health Necessity?
Finally, Hobby Lobby says the government has no overriding justification for the contraception mandate.
"This isn't a case about access to contraception. It's not like the families here are taking action to prevent their employees from getting these devices if they want to do it with their own money and on their own time," Clement says.
Not so, replies the government, noting that the Centers for Disease Control and Prevention says that the availability of contraception is a matter of public health "necessity." The government points to studies that have shown one-third of women would change their method of contraception if cost was not a factor and that the most effective methods are the most expensive. IUDs are 45 times more effective than the pill, given average use, and 90 times more effective than condoms. But IUDs are also the most expensive method, costing between $500 and $1,000 in one lump sum.
The government also argues that requiring effective contraception and counseling in insurance plans is justified as a matter of gender equality.
"For an employer to say, I will cover all the basic essential health needs for men, but I am picking and choosing for women, and I am simply going to take out contraception or specific forms of medically approved contraception, it is sex discrimination," says Marsha Greenberger, co-president of the National Women's Law Center. It is sex discrimination, she argues, because such selectivity regarding an essential part of women's health care costs forces women to pay more for their care.
The Hobby Lobby corporation and its owners counter that the simple answer to these arguments is to have the government pay for contraception.
The government replies that is no answer. Otherwise, the government would end up paying for everything. A decision is expected by summer.