Battle Lines Form Over Contraception Mandate

Health care reform's next Supreme Court test looms.

, The National Law Journal


A Hobby Lobby Inc. store in Little Rock, Ark.
A Hobby Lobby Inc. store in Little Rock, Ark.

The Ovarian Cancer National Alliance says oral contraceptives can reduce women's risk of deadly ovarian cancer by 50 percent. The Breast Cancer Prevention Institute claims that certain contraceptives significantly increase risks of breast and other cancers.

Those two organizations stand on opposite sides in two of the more than 80 amicus briefs filed by groups and individuals across the political, social, economic, religious and medical spectrums in the next U.S. Supreme Court showdown over the federal health insurance law.

The high court had set Jan. 28 as the filing deadline for all amicus briefs in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius. A tsunami of opinions had reached the justices by the close of business that day.

The two cases ask whether the law's requirement that health coverage include contraceptives violates the rights of for-profit business owners who object on religious grounds or the rights of their businesses. The companies and their owners make their claims under the Religious Freedom Restoration Act of 1993 (RFRA) and the free exercise clause of the First Amendment.

The two corporations and their owners drew 56 supporting briefs in an effort coordinated by the Becket Fund for Religious Liberty, while the Obama administration's side attracted more than two dozen under the guiding eyes of the American Civil Liberties Union and the National Women's Law Center.

"One of the tasks we faced was to avoid duplication [among the briefs], so we didn't want sheer volume," the ACLU's Brigitte Amiri said. "We wanted to make sure a wide range of topics was covered and that the Supreme Court would hear from lots of voices."


Becket Fund attorney Lori Windham said both quantity and quality were achieved by briefs supporting Hobby Lobby and its owners, the David Green family, represented by the fund. Alliance Defending Freedom attorneys are counsel of record for Conestoga Wood. "We were glad to have really broad and deep support, so we wanted to make sure the court knew that," Windham said. "Our 56 briefs take a lot of different approaches to the arguments."


The two cases present a range of complex issues for the justices. For example, under RFRA, if the government imposes "a substantial burden on a person's exercise of religion," it must show a compelling interest to justify that burden and also that it has chosen the least restrictive means to achieve that interest. Is a corporation a "person" under RFRA? Can it exercise religion? Can the religious beliefs of the owners "pass through" to the corporation?

What about the burden imposed — the contraception coverage requirement. Is that burden substantial? Is the government's interest in preventive health coverage, including women's health needs, a compelling interest, and has it chosen the least restrictive means to achieve that interest? There are competing amicus briefs on those questions as well as on the history of RFRA and what Congress intended by its enactment.

Nineteen Democratic senators who served in Congress during the RFRA debate contend in their brief that Congress did not intend to extend free exercise rights to secular, for-profit corporations. However, 15 Republican senators and representatives counter that "RFRA is a 'super-statute' that applies a single, religion-protective principle for evaluating all actions of the federal government that substantially burden the exercise of religion."

In its brief supporting the government, Lambda Legal warns that if the companies prevail, the decision "would open the floodgates of religion-based discrimination targeting LGBT [lesbian, gay, bisexual and trandgendered] individuals, people living with HIV and other vulnerable populations, denying them equal compensation, health care access, and other equitable treatment in commercial interactions." In contrast, the American Center for Law & Justice contends, "Unlike the multitude of state and federal regulations that Amici direct their businesses to comply with, the [contraceptive] Mandate crosses the line."

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