UPDATED 3:47 p.m.
Taking on a new constitutional dispute over the Affordable Care Act, the Supreme Court on Tuesday agreed to hear religious challenges to the requirement that employers provide health insurance for their workers that includes birth control and related medical services. The Court said it would decide constitutional issues, as well as claims under the Religious Freedom Restoration Act.
The Court granted review of a government case (Sebelius v. Hobby Lobby Stores) and a private business case (Conestoga Wood Specialties Corp. v. Sebelius). Taking the Conestoga plea brought before the Court the claim that both religious owners of a business and the business itself have religious freedom rights, based on both the First Amendment and RFRA. The Hobby Lobby case was keyed to rights under RFRA.
The Court also took on a new dispute over legal immunity for Secret Service agents when they take action while protecting the president (Wood v. Moss). And it added a case on the status in bankruptcy of an Individual Retirement Account that someone has inherited, rather than set up personally (Clark v. Rameker).
The Court did not expedite the briefing schedules for the new cases, so presumably they will be heard in March. Moreover, the Court has already released its argument schedule for all sittings through the February session.
Under the orders the Court issued in the health care cases, the Justices are not being asked to strike down the requirement that employers provide a full range of pregnancy-related health care under their employees’ health insurance plans. In that sense, these cases are different from the Court’s first rulings on the ACA two years ago, when it upheld a penalty for an individual who refused to obtain health insurance at all and nullified a requirement that states must broadly expand their Medicare program of health care coverage for the poor.
This time, the Court will be focusing only on whether the pregnancy-related care coverage can be enforced against profit-making companies — or their individual owners, when that is a very small group — when the coverage contradicts privately held religious beliefs.
It is already clear, of course, that individuals — whether they own businesses or not — do have religious beliefs that the government may not try to regulate. But it is not yet clear, and these cases will test the issue, whether they have a right — constitutional or based on a 1993 federal law — to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith.
On the other hand, it is not clear that a business that is formed as a corporation, and engages in a strictly commercial kind of activity, can have religious beliefs and can actually base its commercial actions upon such faith principles (separate from the religious beliefs of its owners). The Court has never ruled on that issue, but that is one of the core issues it has now agreed to consider.
In the government case — that is, the one involving the arts and crafts retailer, Hobby Lobby — the answer to questions about both the individual owners of a closely held business and the business itself as a separate entity arises under the Religious Freedom Restoration Act. That law specifies that the government cannot impose a “substantial burden on a person’s exercise of religion,” unless the government can prove that the burden serves “a compelling governmental interest” and that it is also “the least restrictive means” of doing that.
The Court, in confronting that issue, probably will have to decide whether the business itself is “a person” under RFRA. If it decides that Congress did not mean to include a corporation as “a person” under RFRA, that could be the end of the corporation’s RFRA claim.
There is no doubt that the individual owners are persons. But the Court must decide whether the pregnancy-related insurance coverage does, in fact, put a burden on the individual owners, or whether any burden is on the business itself, rather than its owners. That is the issue so far as individual owners’ claim under RFRA goes.
But Tuesday’s order granting review did not stop with the government case, and it did not stop with the RFRA issues. By also agreeing to review the plea by a Pennsylvania company that makes wooden cabinets (Conestoga Wood Specialties), and its Mennonite family owners, the Court expanded considerably the scope of its review. That case, in addition to the RFRA issues, also raises issues under the First Amendment’s guarantee of a right to freely exercise one’s religion.
The issue before the Court is whether the business itself is capable of “exercising” religion. If it is not, that would imperil, but perhaps not destroy altogether, its First Amendment claim. The Court might also have to decide whether, even if a profit-making firm does not exercise religion on its own, it can exercise the religious preferences of its owners — that is, by what lawyers call a “pass through” theory, with the owners’ religious views passing through to the corporation they have created.
The constitutional issue for the individual owners of a business starts with a question: is the health care law’s mandate to provide coverage for pregnancy-related services a law that is applied generally — in other words, must the law be obeyed by all entities that are similar in character, and thus does not single out any of them for less favorable treatment because of their religious beliefs? If the law is generally applicable, then the owners would not have a free exercise claim, it would appear, at least if past precedents are followed.
But if the Court were to rule that the requirement is not generally applicable, because of a host of exemptions that are written into the law, then the individual owners would be able to press their claim that it intrudes unconstitutionally on the exercise of their religious principles. The Court then would have to rule on whether the law does, indeed, interfere with the owners’ faiths because it forces them to run their business, in part at least, in defiance of their religions. Again, though, the underlying question would be whether it is the corporation, not its owners, that is the target of the coverage requirement.
The two cases will be heard together by the Court, with only one hour of argument set aside for the two. On one side will be the government, and on the other will be one or more attorneys for the two companies involved in the cases. Initially, it will be up to the lawyers to sort out their roles and how they divide up the time at the hearing.