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Health Care Reform: Supreme Court Grants Review to Two Cases Challenging ACA’s Contraception Coverage Mandate

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November 2013

The United States Supreme Court has agreed to hear two cases challenging the Affordable Care Act’s (ACA) contraception mandate, which requires health plans sponsored by employers with 50 or more employees to offer coverage for contraception-related services, including drugs, devices, and counseling at no charge to their employees (Sebelius v. Hobby Lobby Stores, Inc., U.S., No. 13-354 from the Tenth Circuit Court of Appeals, and Conestoga Wood Specialties Corp. v. Sebelius, U.S., No. 13-356 from the Third Circuit). The Supreme Court announced it will hear combined oral arguments for the two cases.

Both cases involve plaintiffs that are closely held, for-profit corporations. At issue is whether closely held corporations are exempt from the contraception mandate if its owners object to the mandate on religious grounds. The plaintiffs are challenging the mandate under both the free exercise clause of the First Amendment and the federal Religious Freedom Restoration Act (RFRA), which states that the government may not impose a “substantial burden” on a person’s religious exercise absent a compelling governmental interest and a showing that the burden is the least restrictive means of furthering the compelling interest.  

The Tenth Circuit ruled in the Hobby Lobby case that the corporation-plaintiffs were likely to succeed on the merits in establishing that they are exempt from the ACA’s mandate because they qualify as “person[s]” who can exercise religion and assert rights under the RFRA. By contrast, the Third Circuit ruled in the Conestoga case (involving a Mennonite family’s incorporated woodworking business) that the plaintiffs were unlikely to succeed on the merits because “for-profit, secular corporations—apart from its owners—[cannot] exercise religion.”

The Supreme Court’s decision to weigh in on the issue may resolve the circuit split and provide clearer guidance on the applicability of the contraceptive mandate. It should be noted that many religious, non-profit organizations are already exempt from ACA’s contraceptive mandate.

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