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U.S., business appeal on birth-control mandate (UPDATED)

UPDATE 4:28 p.m.   The Obama administration has taken its own case to the Supreme Court on the birth-control mandate in the new federal health care law.  The petition and appendix, a large file, are here; they were filed Thursday afternoon.  The government petition raises only an issue under the Religious Freedom Restoration Act, not under the First Amendment.  The Tenth Circuit Court had struck down the mandate as applied to the arts-and-crafts chain Hobby Lobby, based on RFRA and not on the Constitution.  The government petition is docketed as No. 13-354.  No number has been assigned yet to the petition described in the post below. (FURTHER UPDATE 6:28 p.m.: The Conestoga petition has now been docketed as 13-356.)


Lawyers for a family-owned woodworking business in Pennsylvania on Thursday asked the Supreme Court to bar the government from requiring the firm to provide birth-control health insurance for its workers, under the new federal health care law.  This is the first of multiple cases on the issue that likely will reach the Court out of the sixty-plus cases working their way through lower courts.  The new petition (a large file) is here.

The chances are strong that the Court will agree to rule on one or more of the challenges, since federal appeals courts are now split on the question.  Moreover, the Obama administration is expected to file its own appeal on the issue, as early as next week.

Under the Affordable Care Act, employers with more than fifty employees must provide them with health insurance coverage for more than two dozen health care services related to reproduction, ranging from birth-control pills to various forms of pregnancy screening.  The law has a narrow exception for strictly religious organizations, but no exemption for profit-making businesses.  The business firms that have challenged the law are owned or operated by religiously devout families, who contend that the health services mandated by the ACA conflict with their religious beliefs — particularly, their opposition to abortion or abortion methods.

The first petition is from a profit-making company — Conestoga Wood Specialties Corp., based in East Earl, Pennsylvania, and operated by the Hahn family, members of the Mennonite Church.  The firm, with nearly one thousand workers, makes doors and other wooden parts for kitchen cabinets. The company’s petition raises this single question: “Whether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage mandate of the ACA.”

“As a matter of conscience,” the petition said, the family is opposed to “facilitating certain contraceptives that they believe can destroy human life.”  Some of the required services under the ACA, they argue, can prevent the implantation of a human embryo, and the family considers that to be an abortion.  Their right to hold their beliefs without government interference, they argue, is protected by the First Amendment’s Free Exercise Clause and by a federal law, the Religious Freedom Restoration Act.

The Third Circuit Court, based in Philadelphia, rejected their challenge, ruling that a business firm organized to earn a profit cannot “exercise” religion, so the business itself cannot claim protection.  The Circuit Court also ruled that the mandate applies to the business as a distinct entity, and not to the family members.  It also rejected the view that the family’s religion beliefs flow through to a business they operate in the corporate form.

If the company refuses to provide the required health insurance, the petition said, Conestoga faces a financial penalty of up to one hundred dollars a day for each worker.  That would amount, for Conestoga, to about $35 million a year in penalties.  That amount, the document said, would rapidly destroy its business and wipe out some 950 jobs.

Even if the company stopped providing any form of health insurance, the petition said, it still could face an annual penalty of $1.9 million, putting it “at a steep competitive disadvantage in the marketplace.”

The Third Circuit’s ruling explicitly conflicts with a decision by the Tenth Circuit Court.  However, the Sixth Circuit Court in a ruling earlier this week agreed with the Third Circuit’s analysis.   The federal government lost the case in the Tenth Circuit, in what is called the “Hobby Lobby” case, involving an Oklahoma company that runs a chain of craft stores.  The U.S. Solicitor General is expected to file a petition in that case.  A petition apparently would be due by next Wednesday.

Petitions filed at this time will be before the Court in time to be granted, argued, and decided this Term.

Recommended Citation: Lyle Denniston, U.S., business appeal on birth-control mandate (UPDATED), SCOTUSblog (Sep. 19, 2013, 2:29 PM),