The US Supreme Court’s decision to take up two cases to examine the contraceptive mandate in President Obama’s Affordable Care Act touched off an immediate and vigorous debate pitting women’s health-care rights against the right of American business owners to run their enterprises in accord with religious teachings.
If there is middle ground in this escalating standoff, no one sought to claim it on Tuesday.
Instead, women's rights advocates launched an aggressive defense of the Obama administration’s position that bosses have no business dictating details of a woman’s health-care decisions.
On the other side, religious rights advocates argued that free exercise of religion is guaranteed for all Americans, even those who run a private, for-profit corporation and operate it based on religious and moral principles.
At issue before the Supreme Court is a requirement in the Affordable Care Act (ACA) that employers provide their workers with a government-set level of health insurance, including access to 20 US Food and Drug Administration-approved contraceptive methods.
The owners of two companies, the Hobby Lobby chain of craft stores and cabinet maker Conestoga Wood Specialty Corporation, objected to being forced by the government to provide their employees with cost-free access to four types of contraceptives that they found offensive to their religious beliefs.
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The four contraceptives included two types of intrauterine devices (IUDs) and two brands of the so-called morning-after pill.
The religious owners said the four contraceptives could interfere with the growth of a fertilized human egg. According to their religious beliefs, life begins at conception and any birth-control method that interferes with the development of an embryo is immoral.
The companies filed suit in federal court to obtain the same kind of religious exemption the Obama administration has granted for churches and certain nonprofit religious groups.
The administration refused to extend the exemptions to corporations because the businesses were for-profit.
A federal appeals court agreed with Hobby Lobby that it should be exempt, but a different appeals court sided with the administration and ruled that Conestoga Wood Specialty was not entitled to an exemption.
Now it is up to the Supreme Court to break the tie.
Ed Whelan, president of the Ethics and Public Policy Center, said the contraceptive mandate is evidence of the president’s “extreme hostility to religion.”
“The Obama administration takes the radical position that Americans who own a business have no religious-liberty rights in how they operate their business if their business is incorporated,” Mr. Whelan said in a statement.
“Under its position, a Jewish family that owns and operates an incorporated kosher deli could be compelled to serve pork and to remain open on the Sabbath,” he said.
Cecile Richards, president of Planned Parenthood Federation of America, said the issue wasn’t religion, it was the right of women to basic health care, including the full range of FDA-approved birth control.
“The corporations that brought these cases have views that are far outside the mainstream, and the outcome of these cases could have extreme consequences for millions of Americans,” Ms. Richards said.
“For the first time ever, the court could decide that corporations have the right to opt out of a legal requirement – based entirely on the personal beliefs of their owners,” she said.
“Birth-control decisions should be made by a woman in consultation with her health-care provider, not in consultation with her employer,” said Vicki Saporta, president of the National Abortion Federation.
“Allowing bosses and corporations to interfere with this basic right would be a major step backwards for women’s health,” she said.
One key question the high court will have to confront is whether a corporation – as opposed to its owners – can exercise religious rights protected under the First Amendment.
In the Citizens United campaign finance case, the high court ruled that corporations enjoy free speech rights protected under the First Amendment. Now, in the Hobby Lobby/Conestoga case, the justices will be asked to decide whether First Amendment protections of religion also apply to corporations.
Critics argue that corporations can’t pray or worship. Religious liberty advocates counter that neither can churches pray or worship, but they are afforded First Amendment protections.
“This isn’t about protecting religious freedom. This is about denying women access to basic preventative services and creating a ‘religious-right-of-corporations’ which can be used to override a woman’s basic right to health care,” said Debra Hauser, president of Advocates for Youth.
At its most basic level, the debate over the ACA contraceptive mandate isn’t about whether women should have access to contraceptives. The real issue is who will pay for cost-free access to contraceptives.
The Obama administration believes it has the power to order private corporations to pay for this service, regardless of any religious conscience issues raised by owners.
Lawyers for the Hobby Lobby and Conestoga say the government is required to prove that its contraceptive mandate is the least restrictive means to achieve the government’s important goal.
They say that is a test the government cannot pass since it has already awarded exemptions from the mandate to nonprofit religious organizations.
“The government shouldn’t be able to punish Americans for exercising their fundamental freedoms,” said David Cortman, a lawyer with the group Alliance Defending Freedom, who is also representing Conestoga Wood.
“The administration has no business forcing citizens to choose between making a living and living free,” he said. “A government that forces any citizen to participate in immoral acts – like the use of abortion drugs – under threat of crippling fines is a government everyone should fear.”
Others say it is the corporations and their CEOs who are to be feared. “Everyone has a right to their religious beliefs, but religious freedom does not include the right to impose your beliefs on others,” said Louise Melling, deputy legal director of the ACLU.
“It does not mean that businesses can refuse to comply with the law based on their religious beliefs, particularly where that means discriminating against their employees,” she said.