Contraception requirement case headed to Supreme Court

Posted Friday, Nov. 29, 2013  comments  Print Reprints
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norman The family that runs the 578-store, Oklahoma City-based chain of Hobby Lobby stores has made a powerful argument against the Affordable Care Act’s requirement that its employee health insurance include all forms of FDA-approved contraceptive care.

On Tuesday, the U.S. Supreme Court said it would listen to that argument. If the high court ends up agreeing with a June ruling from the 10th Circuit Court of Appeals in Denver, it will strike a blow against Obamacare.

That result is not assured. Hobby Lobby’s objections are on religious grounds, and lower courts have been divided on similar cases brought on behalf of other employers.

In fact, the Supreme Court also agreed to hear a similar case involving a family-owned cabinet maker, which the 3rd Circuit Court of Appeals in Philadelphia ruled could not raise a religious objection to the ACA’s contraceptive requirement.

Last year, the Obama administration scored a big win for its signature healthcare law when the Supreme Court approved a provision requiring most Americans to obtain health insurance coverage or face financial penalties.

The Hobby Lobby case will be more difficult for the Obama team. Still, it’s important to remember that both cases involve specific parts of the law — and the latest one a very specific set of circumstances for Hobby Lobby.

Just as last year’s “individual mandate” ruling did not preclude other challenges to ACA requirements, a ruling on behalf of Hobby Lobby would not invalidate the entire law.

Hobby Lobby patriarch David Green started the company in his garage in 1970. It’s still operated by the Green family and is one of the nation’s largest private companies.

First on the list of goals on Hobby Lobby’s website is this: “Honoring the Lord in all we do by operating the company in a manner consistent with biblical principles.”

Hobby Lobby has bought full-page ads inviting people to “know Jesus as Lord and Savior.”

Most important to their case is the Greens’ belief that human life begins when sperm fertilizes an egg. And in the words of the 10th Circuit ruling, “the Greens believe it is immoral for them to facilitate any act that causes the death of a human embryo.”

They object to four of the 20 forms of contraception covered by the ACA. Although there are arguments over exactly how these methods (two types of pills and two intrauterine devices) work, parties to the case acknowledge that they have the potential to prevent a fertilized egg from implanting in the womb, bringing about the death of the embryo.

The Obama administration argues that, as a for-profit corporation, Hobby Lobby cannot claim religious protections available to “persons” under the Religious Freedom Restoration Act of 1993. The 10th Circuit disagreed, much as the Supreme Court did in 2010 when it said corporations are “persons” with free speech rights.

Other parties have said that if Hobby Lobby gets its way, it would force its religious beliefs on its employees and deny women the right to make key health decisions.

The 10th Circuit says the real issue is whether the government can force the Greens and Hobby Lobby to take actions that run counter to their sincerely held religious beliefs. Whether those beliefs are right or wrong, the court said, is not for judges or the government to decide.

Hobby Lobby is willing to pay for coverage that includes 16 FDA-approved methods of contraception. Women who want one of the four methods to which the company objects can pay for it themselves.

Finally, the 10th Circuit said government requirements must be based on “a compelling public interest implemented through the least restrictive means available.”

The government’s stated interests here, “public health and gender equality,” are very broad, the appellate court said. Yet the Obama administration has already said that tens of millions of people will not be covered by the contraception requirements.

That includes those working for some private employers, for companies with fewer than 50 employees and, under a proposed rule, for colleges and universities run by religious institutions.

It’s going to be hard not to add Hobby Lobby employees to that list.

Mike Norman is editorial director of the Star-Telegram. 817-390-7830 Twitter: @mnorman9

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