The Affordable Care Act’s Contraceptive Mandate

Opinion by Thomas Fu
Feb. 20, 2014, 2:04 a.m.

Although the American Judiciary is one of the three co-equal branches of government, it is probably the least well understood by the public. In 2010, for instance, one study found that 53% of Americans responded “Don’t know” when asked to name the Chief Justice of the United States (John G. Roberts, Jr.), while another 18% answered incorrectly (including 4% who named Senate Majority Leader Harry Reid (D-Nev.)). In this column, we seek to help address this knowledge gap by discussing some of the important work of the “least dangerous branch.”

While many of the cases we’ll be discussing are not only high profile, but also highly controversial, we will intentionally shy away from expressing any normative (and, to the fullest extent possible, legal) views in this column. Instead, our goal is to sketch out the basic contours of (hopefully) interesting and timely legal issues, as well as to explain a bit about how the Supreme Court goes about its business.

On March 25, the Supreme Court will hear oral argument in what are likely to be two of the most controversial cases this term:  Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc. In each case, a for-profit corporation has filed a challenge to the Patient Protection and Affordable Care Act’s (ACA’s) contraceptive-coverage mandate, which requires employers to provide their employees with a health insurance plan that includes coverage for a list of contraceptives. Both corporations claim that providing such insurance is a violation of its religious rights.

Though the facts of the two cases differ slightly, the legal issues presented in each are essentially the same: (1) whether protections for the free exercise of religion extend to for-profit corporations; and (2) whether the contraception-coverage mandate violates the Religious Freedom Restoration Act (RFRA), a federal law that subjects all measures that “substantially burdens a person’s exercise of religion” to strict judicial scrutiny—a test that is “strict in theory but fatal in fact.”

While the question of whether for-profit corporations are entitled to protections for religious exercise may strike some as Citizens United redux, the analyses in these cases are actually quite distinct. As the challengers point out, incorporated entities have long been entitled to protections for religious freedom. Indeed, many churches are organized as nonprofit corporations, and it is uncontroversial that they are entitled to protections for their religious exercise.

Similarly, the Supreme Court has routinely recognized that individuals engaged in commerce (Jewish merchants are a classic example) are also entitled to religious protections. Because neither corporate status nor profit-seeking alone create a barrier to free exercise protections, the question in these cases is whether the combination is somehow fatal. Unsurprisingly, the challengers take the position that it is not.

The Obama Administration, on the other hand, argues that for-profit corporations are qualitatively different than either nonprofits or individuals engaged in commerce. For-profit corporations, the government argues, must abide by the “first principle of corporate law”: the notion that a corporation and its owners are distinct entities. Because corporations, as abstract legal entities, are incapable of possessing a sincere religious belief, the government argues, the challengers are improperly ignoring corporate separateness by attributing to the corporation the beliefs of its owners.

While the question of corporate religious exercise may be the most highly watched question in Conestoga and Hobby Lobby, it may not be the most difficult question for the Court to answer. Instead, the most challenging question may be whether the mandate “substantially burden[s]” either corporation’s religious exercise.

On the one hand, it is undisputed that if the government directly penalizes one’s exercise of religion (e.g., through a fine or imprisonment), that constitutes a substantial burden. Similarly, there is also a substantial burden if the government conditions receipt of a benefit on refraining from religious exercise (e.g., refusing to give welfare to anyone who takes Communion). On the other hand, it is not a substantial burden for the government to compel a person to pay taxes, even if a portion of those taxes are spent on something (e.g., war) that deeply offends the taxpayer’s religion.

In this case, it’s not clear where on that spectrum the mandate falls. The challengers argue that their religions prohibit them from facilitating access to certain contraceptives. So in their view, it is the act of purchasing the insurance itself that causes the religious harm, and in this way, the mandate acts as a direct penalty on their religious exercise. The government, however, sees it differently. In its view, the mandate is more like the tax—it requires the employers to contribute to a bundle of goods, where, as with war, the particular choices regarding expenditures are far outside the employers’ control.

However the Court comes out, the Conestoga and Hobby Lobby decisions have the potential to have important ramifications, not just for the implementation of the ACA, but also for religious liberty in the country more generally.


David Friedman and Thomas Fu are the managing editors of the Stanford Law Review. Contact them at [email protected] and [email protected].

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