Contraceptive Requirement Before Supreme Court

Mar 25, 2014

If a company’s owners have a strong religious objection to some kinds of contraception, can they refuse to include coverage for those types of contraception in their employee health insurance plan?

The President’s Affordable Care Act requires that large companies offer comprehensive health insurance to employees, including coverage for contraception. The administration has exempted religious groups from this requirement, but it has said that for-profit companies cannot be granted an exemption on religious grounds.

Today the Supreme Court will hear arguments from two Christian-owned companies that sued the government over the issue: Hobby Lobby Stores and Conestoga Wood Specialties.

David and Barbara Green of Oklahoma own Hobby Lobby Stores, a chain of arts and crafts stores with more than fifteen thousand employees. The Greens do not discriminate in hiring — employees belong to different faiths, but they try to run their business in accordance with their Christian principles. They do not object to many kinds of birth control, including condoms, diaphragms, sponges, sterilization surgery, and some types of birth control pills. But they do object to anything that would prevent an embryo from implanting, which they say would involve them in forms of abortion.

Lori Windham of the Becket Fund, which is representing Hobby Lobby told CBS News, “This case will decide whether a family gives up their religious freedom when they open a family business. The question here is whether the Green family can be forced to do something that violates their deeply held religious conviction as a consequence of the new health care law.”

The Hahns, a Pennsylvania-based Mennonite family who own Conestoga Wood Specialities, share those objections to the contraception requirement of the Affordable Care Act.

Reproductive rights advocates argue that allowing businesses to pick and choose which contraception coverage to offer would violate employees’ rights.

White House Press Secretary Jay Carney said, “Our policy is designed to ensure that health care decisions are made between a woman and her doctor. The president believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.”


  •  Jess Bravin, Supreme Court reporter for the Wall Street Journal. He tweets @JessBravin.

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From NPR and WBUR Boston, I'm Robin Young.


I'm Jeremy Hobson. This is HERE AND NOW. Today, the Supreme Court heard arguments about the Affordable Care Act, not the act itself but the question of whether companies with religious objections to covering contraceptive care can refuse that kind of coverage in their employee health plans. The administration has exempted religious groups like the Catholic Church from this requirement, but it has said that for-profit companies cannot be granted an exemption on religious grounds.

And two companies have sued the government: Hobby Lobby and Conestoga Wood Specialties Corporation. Jess Bravin is, Supreme Court reporter for the Wall Street Journal. He was at the court for today's arguments, and he joins us now from Washington. Jess, welcome.

JESS BRAVIN: Thanks, Jeremy.

HOBSON: Well, what did these companies have to say to the court today?

BRAVIN: Well, their argument is based on a 1993 federal law that creates a balancing test when someone has a religious objection to a general law. Basically the law says that if a federal requirement imposes a substantial burden on religious exercise, the party doesn't have to comply with the law unless there's a compelling government interest. That's the only way really to achieve that outcome.

So they're arguing that requiring them to provide coverage for contraceptives that they consider to be the equivalent of abortion is a substantial burden on their faith. One company is owned by evangelical Christians. The other is owned by a Mennonite family. And they say that there are simple ways for the government to make sure that women who want emergency contraception can get them without requiring these companies to pay for them.

HOBSON: And I guess then the question is going to be what does substantial burden mean.

BRAVIN: And part of the problem is that courts aren't really well-positioned to investigate the details of religious belief and decide how sincere or how central a particular belief is. Pretty much if someone says that's what they believe, the court really isn't in a position to second-guess a matter of faith.

But they say that accommodating what they considered to be abortion is a grave violation of their beliefs, and they don't want any part of it. Now the government disputes their position really up and down the line, but that's where these employers are coming from.

HOBSON: Well, tell us about the arguments from the government, from Solicitor General Donald Verrilli.

BRAVIN: He has several arguments. One is simply that for-profit companies aren't entitled to a religious exemption from a general law in the first place. He says that it's one thing if a church or a religiously affiliated nonprofit hospital, say, has a religious exemption because promoting religion or following religion is central to their purpose. But once a company gets into the commercial sphere, it's really playing on a different field, and there it has a different set of obligations, and it's really not in a position to claim religious conscience type of exceptions.

Assuming, however, that a company can do that, and it seemed that many members of the court were certainly open to the idea, Verrilli had other arguments to make, as well. One is that the government's interest in making sure that these contraceptives, which no state or federal agency considers to be a form of abortion, to make sure that women have access to these forms of contraception is a compelling interest of the government to promote public health, and also that it's unfair to put thousands of employees' health care coverage at the mercy of a handful of corporate owners, that these employees are essentially going to bear the burden of subsidizing the religious beliefs of their corporate owners.

HOBSON: Well, did we get any sense of what the justices were thinking? What did they have to say during today's hearing?

BRAVIN: Well, we certainly saw a very stark gender divide on the court. There are three women justices, and all three were aggressive in challenging the corporate position. They raised all kinds of potential that they thought the door could open to if the companies win. What if some employer objects to vaccinations or blood transfusions or all kinds of other medical procedures that one religion or another might have some reservations about?

The male justices, the other six, had varying positions. It was quite clear that Justice Antonin Scalia and Justice Samuel Alito were very sympathetic to the companies' position on this. One of the examples that came up that I think many members of the court were concerned about was what if you had, say, a kosher butcher shop, or a halal butcher shop that, you know, operate in accord with, you know, religious ritual regulations for how meat is to be slaughtered or prepared.

Could the government impose obligations on these shops, which are, say, you know, for-profit shops, and yet they are essential to certain forms of religious practice. Aren't they entitled to some kind of accommodation? And the idea that the government's theory could essentially wipe out any religious conscience protection for a kosher butcher shop seemed troubling to some members of the court.

HOBSON: Jess Bravin, Supreme Court reporter for the Wall Street Journal, thanks so much for speaking with us.

BRAVIN: Any time. Transcript provided by NPR, Copyright NPR.