WASHINGTON (USA TODAY) -- The Supreme Court added a new legal challenge Tuesday
to the legislative and political battles raging over President Obama's
embattled health care law.
The justices agreed to consider whether
for-profit corporations whose owners oppose abortion on religious
grounds must abide by the law's mandate that health insurance policies
include free coverage of government-approved forms of contraception.
the first legal challenge to reach the high court since it upheld the
law 17 months ago in a 5-4 decision written by Chief Justice John
Roberts. While a loss for the government wouldn't strike down the law
itself, conservatives still seething over Roberts' rescue of Obamacare
say the case offers Roberts an initial chance to rule against it.
its attachment to the health care law, however, the legal challenge is
significant in its own right because it will answer a fundamental
question with far-reaching consequences: Can corporations pray? Until
now, no court has granted religious rights under the First Amendment's
"free exercise clause" to for-profit businesses.
whose lawsuits were chosen over some 40 others say, in essence, that
they do pray. The cases were filed by Hobby Lobby, a chain of more than
500 arts-and-crafts stores with about 13,000 full-time employees, and
Conestoga Wood Specialties, a Lancaster, Pa., woodworking business run
by a Mennonite family.
Hobby Lobby, an Oklahoma City-based company
founded by David Green in 1970, closes on Sundays and funnels millions
of dollars in profits to ministries. Its website proclaims its
commitment to "honoring the Lord in all we do by operating the company
in a manner consistent with biblical principles."
promoting alcohol, for instance, Hobby Lobby doesn't sell shot glasses.
And to avoid promoting abortion, it doesn't cover drugs or devices which
it claims are capable of terminating a pregnancy, including the
morning-after pill known as "Plan B." The government says none of the
mandated drugs are abortifacients.
Norman and Elizabeth Hahn
operate Conestoga Wood with their three sons, and they "integrate their
faith into their daily lives, including their work," says their brief to
the high court.
"Both cases represent a broad diversity in which families in America
practice their faith as they try to earn a living, all the way from
Mennonites making wood cabinets to the Green family operating a chain
store," said Matt Bowman of Alliance Defending Freedom, which is
The health care law says companies with 50
or more workers that offer health insurance must cover contraceptives
as part of a preventive care package for women. Churches and other
houses of worship were excluded from the mandate, and some religious
institutions, such as universities, were allowed to have insurers offer
the benefit directly.
"We believe this requirement is lawful and
essential to women's health and are confident the Supreme Court will
agree," White House press secretary Jay Carney said Tuesday. "These
steps protect both women's health and religious beliefs, and seek to
ensure that women and families -- not their bosses or corporate CEOs --
can make personal health decisions based on their needs and their
The law's defenders say the exclusions should not extend
to corporations like Hobby Lobby and Conestoga Wood. "Corporations
don't pray ... they don't have a religious conscience," says David Gans of
the Constitutional Accountability Center, a liberal law firm and
advocacy group. "These are all human attributes that don't apply to
Combined with smaller companies and those who did
not change their insurance plans since the law was implemented, up to
one-third of Americans are covered by exempt plans. But larger
for-profit corporations must comply or face fines of $100 per day per
employee, which could total $475 million a year in Hobby Lobby's case.
An alternative -- dropping employee health insurance altogether -- would
cost $26 million in annual penalties.
Hobby Lobby, Conestoga Wood
and many other companies that have challenged the contraception mandate
say that's a violation of the Religious Freedom Restoration Act, passed
by Congress in 1993 to protect "a person's exercise of religion" from
government intrusion. Some of the cases also raise constitutional
challenges as well.
"As the federal government embarks on an
unprecedented foray into health care replete with multiple overlapping
mandates, few issues are more important than the extent to which the
government must recognize and accommodate the religious exercise of
those it regulates," Hobby Lobby argues in its brief.
The Supreme Court already has established that corporations have free-speech rights. In Citizens United v. Federal Election Commission (2010), the justices struck down government restrictions on corporate and union political advertising.
a generation earlier in 1990, the court ruled in an Oregon case that
the government does not have to protect religious beliefs when they
conflict with existing laws. That case led Congress to pass the
Religious Freedom Restoration Act in an effort to tilt the balance back
Now comes the question that subjected
Republican presidential candidate Mitt Romney to ridicule last year: Are
Appeals courts have split down the middle,
virtually forcing the Supreme Court to settle the matter. Two federal
circuit courts have said private companies should be able to sidestep
contraception coverage on religious grounds, including Hobby Lobby. Two
have said the companies must comply with the contraception mandate,
including Conestoga Wood. And one ruled earlier this month that
companies cannot exercise religious beliefs in that way, but their
The 10th Circuit Court of Appeals ruled for Hobby
Lobby in a case from Oklahoma, where the company is based. The court
said the Obama administration "has given us no persuasive reason to
think that Congress meant 'person' ... to mean anything other than its
default meaning in the Dictionary Act - which includes corporations
regardless of their profit-making status."
But in a dissent this
month from another decision against the contraception policy, Judge
Ilana Rovner of the 7th Circuit appeals court warned that granting
religious rights to corporations could lead to denials of coverage for
stem cell therapy, unpaid family leave for gay parents, or even
traditional medicine, depending on company owners' religious beliefs.
U.S. solicitor general's office warned in its brief asking the Supreme
Court to take the case that a victory for the companies would transform
the Religious Freedom Restoration Act "from a shield for individuals and
religious institutions into a sword used to deny employees of
for-profit commercial enterprises the benefits and protections of
generally applicable laws."
While most Supreme Court experts had
predicted the justices would grant the Hobby Lobby case, the court may
have added Conestoga's challenge because that company is owned directly
by a family, rather than a trust.
"It's a really significant
case," says Josh Blackman, an assistant law professor at South Texas
College of Law and author of a recent book on the constitutional
challenges to Obamacare.