Religious challenge to health care law hits high court

President Obama’s health care law gets a return engagement at the Supreme Court next week in a case full of hot-button issues: religious freedom, corporate rights, federal regulation, abortion and contraception.

Put another way, it’s a case about God, money, power, sex — and Obamacare.

Nearly two years after the court’s 5-4 decision upheld the law and its controversial individual and employer mandates, the justices will consider a different requirement — that companies pay for their workers’ birth control.

In a Supreme Court term that has lacked the drama of last year’s gay marriage and civil rights cases or the prior term’s health care showdown, the so-called “contraception mandate” now commands center stage.

It’s been the subject of more than 100 lawsuits across the country, including 78 that are still pending. More than 80 outside groups submitted briefs to the Supreme Court. A related case filed by an order of Catholic nuns called Little Sisters of the Poor required an emergency stay from Justice Sonia Sotomayor on New Year’s Eve, just hours before she led the countdown for the ball drop at Times Square.

“This literally has taken on a life of its own,” says John Bursch, a former Michigan solicitor general who argued eight cases at the court in the past three years.

“It’s this term’s gay rights case,” says Pamela Harris, a Georgetown University law professor and former Justice Department official.

On one side is the Obama administration, insistent that health policies written under the Affordable Care Act include full coverage for all methods of birth control.

On the other side are two family-owned corporations — the Hobby Lobby chain of arts-and-crafts stores and Conestoga Wood Specialties Corp., a Mennonite-owned cabinet maker. They cite religious objections to intrauterine devices (IUDs) and “morning-after” pills, which they say can cause abortions.

The two cases, which will be argued together by the same lawyers who faced off over the health care law in 2012, present hotly contested legal questions. Here are four of them:

QUESTION ONE: DOES RELIGION TRUMP THE LAW? The central focus will be on the sweep of the Religious Freedom Restoration Act, as well as the First Amendment’s protection of religious exercise.

Passed easily by a Democratic Congress and signed by President Clinton, the law was a response to a 1990 Supreme Court decision that denied state unemployment benefits to a man fired for using peyote as part of a religious ritual.

Unless the companies can hide behind that law, they face fines of $100 per day per employee.

The religious freedom law “was never meant to trump all of the civil rights and the health protections that Americans have in this country,” says Marcia Greenberger, co-president of the National Women’s Law Center.

QUESTION TWO: DO CORPORATIONS HAVE A CONSCIENCE? Walk into one of Hobby Lobby’s 556 stores nationwide and you’ll shop for collage frames and candle holders to the sounds of Christian music. Don’t look for shot glasses, which promote alcohol use. And don’t come on Sundays, when all stores are closed for family time and worship.

QUESTION THREE: CONTRACEPTION OR ABORTION? The stakes are high. Women spend on average about five years trying to conceive and give birth, compared with about 30 years trying not to get pregnant, according to the Guttmacher Institute.

That makes effective and affordable birth control an essential benefit, advocates say.

QUESTION FOUR: WILL OBAMACARE SUFFER A SETBACK? It’s not the only challenge to the law, but it has the best chance of success. Other lawsuits pending in lower courts are challenging the way the law was passed, the way it was worded and the bureaucracy it created. While considered long shots, a victory by opponents would have a far broader impact.

Even if the contraception challenge succeeds, the law will remain virtually intact. Its opponents contend that female employees ultimately will get full contraception coverage, either from the government or private insurers.

“This would be a big victory for religious liberty, but it wouldn’t be a significant defeat for the Affordable Care Act,” says Randy Barnett, a Georgetown University law professor whose legal arguments formed the basis for the original challenge.

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