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Contraceptives dispute reaches Court

Two profit-making companies run by religious families who have strong anti-abortion views have asked the Supreme Court for an emergency order to protect them from the new federal mandate requiring employers to provide free health insurance for emergency contraceptives for their workers.  They also asked the Court to decide their religious freedom plea promptly, without waiting for a federal appeals court to rule.   The application, filed Friday, is Hobby Lobby Stores v. Sebelius (docket 12A644).

The application was filed with Justice Sonia Sotomayor, who is the Circuit Justice handling emergency matters from the geographic area that includes the Tenth Circuit Court, based in Denver.  Sotomayor has the authority to act on her own, or to share it with her colleagues — the more likely option, after the federal government has a chance to respond.   Although the constitutional controversy over the contraceptives mandate has been developing in federal courts across the country, this marked the first time that the dispute had reached the Supreme Court.

The case involves an arts and crafts chain based in Oklahoma City, and a related chain of Christian bookstores, Mardel, Inc.   Hobby Lobby was begun in 1970, as a picture-framing business in the garage of David and Barbara Green.  It has grown into a nationwide chain of more than 500 stores, with more than 13,000 employees.   The Green family had always vowed, they told the Court, “to run their businesses in a way consistent with their Christian faith, which requires them to ‘honor the Lord in all they do.'”

They do not oppose all aspects of the contraceptives mandate that was written into the new federal health care law, but they do object to any role in providing access to drugs that they believe could lead to abortion.   Their lawyers took the case to the Supreme Court after the Tenth Circuit Court last week denied a plea to block the mandate as it applied to them, while they pursue their challenge in court.

If they have to begin obeying the contraceptives mandate when it takes effect on January 1, their application argued, their two companies may face “crippling fines” that could go as high as $1.3 million for each day that they failed to provide health insurance to cover the cost of emergency contraceptive drugs.  Such fines, they contended, could threaten the companies’ survival.

Some forty lawsuits nationwide have been filed to challenge the contraceptives insurance requirement, with the majority of them filed by non-profit entities like religious schools, colleges  and hospitals.  But the lawsuits also include fourteen that have been filed by the owners of profit-making businesses who are opposed to birth control drugs or other preventive pregnancy-related services.

Most strictly religious institutions like churches are exempt from the contraceptives mandate, and many schools, colleges, and hospitals are temporarily protected from it by a “safe harbor” provision that is due to expire next August.   Some of the religious schools, colleges, and hospitals will qualify for an exemption when the government issues a final rule on implementing the mandate, in the first quarter of 2013, to take effect before August.

Among profit-making companies, however, they will  not be eligible for an exemption unless their employee health plans have been “grandfathered.”   Hobby Lobby Stores and Mardel, their lawyers told the Court, will not qualify for any exemption, and thus they face a definite January 1 deadline to provide the mandated coverage.

Besides asking for an injunction to block the mandate as it applied to them, while their court appeal continues, they requested that the Court treat their case as a petition for review prior to a decision by the Tenth Circuit Court.  They argued that the lower courts have been splitting in their reaction to the lawsuits, so the controversy is already fully developed, and the Justices should wait no longer to resolve it.


Recommended Citation: Lyle Denniston, Contraceptives dispute reaches Court, SCOTUSblog (Dec. 23, 2012, 4:50 PM),