Contraception Mandate Curbed by High Court

WASHINGTON (CN) - The Supreme Court sided Monday with closely held companies owned by individuals with religious objections to covering their employees' contraceptive needs.

Hobby Lobby Stores and Conestoga Wood Specialties brought the challenge to the so-called contraception mandate, which the high court consolidated for review last year.

The 10th Circuit had given Hobby Lobby and its affiliate Mardel an injunction but the 3rd Circuit refused to exempt the Mennonite-owned cabinet business Conestoga from the same mandate.

In affirming Hobby Lobby and reversing Conestoga, a five-justice majority of the Supreme Court found that the mandate violates the Religious Freedom Restoration Act of 1993 (RFRA).

The U.S. Department of Health and Human Services failed to show that "the owners of the companies for­feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprie­torships or general partnerships."

"The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the man­ner required by their religious beliefs," Justice Samuel Alito wrote for the court.

The Green and Hahn families own the businesses in question. They said the mandate of the Patient Protection and Affordable Care Act forces them to violate their religious faith, as they believe they would be forced to fund abortion-causing drugs, including the morning-after pill.

Failure to comply with the mandate carries would have spelled $1.3 million in fines per day for Hobby Lobby, according to the ruling.

"If these consequences do not amount to a substantial burden, it is hard to see what would," Alito wrote.

"Under RFRA, a government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement," he continued. "But in order for the HHS mandate to be sustained, it must also consti­tute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contra­ceptives at issue here and, indeed, to all FDA-approved contraceptives."

There is no reason for HHS to deny for-profit companies the relief from the mandate that it already offers religious nonprofits, according to the ruling.

"We therefore conclude that this system constitutes an alternative that achieves all of the government's aims while providing greater respect for religious liberty," Alito wrote. "And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful."

Justice Ruth Bader Ginsburg argued in dissent that the court's holding gives for-profit companies the power to "opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."

Though Ginsburg complained about the ruling's effect on the thousands of women Hobby Lobby employs, Alito said that accommodating Hobby Lobby would have an effect of "precisely zero" on the women.

"Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing," he added.

It would be a viable option for the United States to swallow the cost of providing contraception to women who work for companies with religious-minded owners, according to the 49-page ruling.

"It seems likely ... that the cost of providing the forms of contracep­tives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA," Alito wrote (parentheses in original).

Noting an estimate that the health care reform law will cost the federal government "more than $1.3 trillion through the next decade," Alito found it

"hard to understand HHS's argument that it cannot be required under RFRA to pay anything in order to achieve this important goal" of ensuring women's access to contraception. (Emphasis in original.)

Having joined the opinion with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, Justice Anthony Kennedy wrote in a concurring opinion to dispute the far-reaching consequences that the dissent ascribed to the ruling.

"In these cases, it is the court's understanding that an accommoda­tion may be made to the employers without imposition of a whole new program or burden on the government," Kennedy wrote. "As the court makes clear, this is not a case where it can be estab­lished that it is difficult to accommodate the government's interest, and in fact the mechanism for doing so is already in place."

Ginsburg remarked at the "startling breadth" of the decision in the principal dissent, joined in full by Justice Sonia Sotomayor.

Ginsburg said she dissented based on her opinion that "Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the court's judgment can introduce."

"The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations' employees and covered dependents," she wrote. "It would deny legions of women who do not hold their employers' beliefs access to contraceptive coverage that the ACA would otherwise secure."

Justices Stephen Breyer and Elena Kagan joined most of Ginsburg's opinion but noted in their own dissent that there was no need to "decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993."

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