By General Counsel K. Hollyn Hollman

Hollman HeadshotMany issues are at play in Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius, pending in the U.S. Supreme Court. The cases involve claims by for-profit businesses challenging the Obama administration’s contraceptive mandate — the requirement, under the Affordable Care Act, that most employer-provided health insurance plans cover all FDA-approved methods of contraception. The businesses seek relief under the federal Religious Freedom Restoration Act (RFRA), which became law in 1993 and has only been reviewed twice by the Court.

The cases have inspired intense debate among scholars and advocates about a number of legal issues relating to the interpretation of RFRA and the future of religious liberty. At the Supreme Court oral arguments last month, the two sides had the opportunity to highlight their best arguments and to try to allay the justices’ concerns about possible ramifications of a ruling in favor of either party. The arguments covered a broad range of issues, including whether and how for-profit corporations can exercise religion and how the law’s exemptions for religious employers affect the government’s ability to prove it has a compelling interest in applying the mandate to the objecting employers in these cases. While many of the arguments were expected, I was particularly struck by two issues that previously had not received much attention outside academic circles.

First, in addition to the expected slippery slope arguments about employers who might oppose providing insurance that covers other medical treatments, such as blood transfusions or vaccinations (or all medical treatments), concern arose about the government’s practical ability to accommodate the particular religious claim at issue. The plaintiffs’ claims were based upon their religious belief that certain kinds of contraception are sinful and that the mandate makes them “complicit in” the use of those contraception methods by their employees.

On its face and supported by its legislative history, RFRA certainly allows any claim of sincerely held religious belief that is substantially burdened by the government to have its day in court. Obviously, that does not mean it will win when weighed against the government’s interests. Counsel for the businesses properly noted that RFRA requires each case to be analyzed on its own, but that in some of the hypothetical cases presented, the government may have a stronger interest that would override those claims.

The more novel issue was how far the claims of complicity can or should extend. What if an employer’s opposition to certain contraception methods goes not only to providing health insurance plans that cover them, but also to acting in any way that would otherwise allow the employees to obtain it? Can those kinds of religious claims receive the same protection as claims that are more direct? The government has provided an accommodation for religiously affiliated employers that object to certain or all contraception. Accommodated employers do not have to provide the objectionable methods in their health plans, but their employees can obtain the benefit directly through the insurance company. Yet several such employers, including the Little Sisters of the Poor and Notre Dame University, have sued claiming that having to complete the paperwork that triggers the accommodation still forces them to facilitate the employee’s ability to ultimately obtain the objectionable contraception. The significance of that point was underscored in Hobby Lobby as counsel for the businesses suggested that his clients have both a religious obligation to provide employee health insurance and a religious obligation to avoid the inclusion of certain contraception methods.

Second, and probably more importantly, several justices emphasized that employers are not actually mandated to be involved in contraception coverage at all. There is no legal obligation for them to maintain employee health insurance plans. They may instead elect to pay a tax to help support the government subsidies that are available to those who must buy a health insurance plan from a source other than their employer. Justices Elena Kagan, Anthony Kennedy and Sonia Sotomayor suggested during oral arguments that the cost of the tax will likely be far less than the cost of maintaining an employee plan. Therefore, as Georgetown Law Professor Marty Lederman has written, it is unclear whether the law substantially burdens plaintiffs’ religious exercise, a question that may depend on variables particular to an employer’s workforce and the labor market in any given case.

Whether these two issues turn out to be decisive remains to be seen when the Court issues its opinion. In addition to raising important legal questions about RFRA and religious freedom generally, these cases have also demonstrated the need for more public debate within religious communities and beyond about important ethical issues. On that front, I note with appreciation a recent opinion article by Professor David Gushee, director of Mercer’s Center for Theology and Public Life, published by the Associated Baptist Press. As Gushee suggests, we should all ask ourselves the hard questions about contraception, health care, and the government’s role in each.

Further reading on the contraceptive mandate from the BJC:
“RFRA’s constitutionality called into question,” by Executive Director Brent Walker, from the February 2014 edition of Report from the Capital
BJC supports strong legal standard in contraceptive mandate cases,” by General Counsel Holly Hollman, from the January 2014 edition of Report from the Capital
Visit the BJC’s page on the Religious Freedom Restoration Act.

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