The U.S. Supreme Court has granted certiorari in two cases challenging the so-called “contraceptive mandate” of the Affordable Care Act. That provision requires employers with group health insurance programs to cover health services that include contraceptive methods, sterilization procedures, and related counseling services.
The companies challenging the statute are two secular privately held for-profit corporations, Hobby Lobby and Conestoga Wood Specialties, whose owners object to the ACA’s contraceptive coverage mandate on religious grounds. More specifically, they argue that under the Religious Freedom Restoration Act of 1993, the business owners’ free exercise rights have been “substantially burdened” by the ACA provision. In Conestoga Wood Specialties v. Sebelius, 724 F.3d 377 (3d Cir. 2013), the Third Circuit held that the plaintiffs were unlikely to succeed on the merits of their claim that their RFRA rights had been violated, and denied injunctive relief. But in Sebelius v. Hobby Lobby Stores, Inc., 723 F.3d 1114 (10th Cir. 2013), the Tenth Circuit held that plaintiffs had successfully demonstrated a likelihood of success on their claims.
The two cases have been consolidated for argument, and are expected to resolve a circuit split, in which the Seventh, Tenth and D.C. Circuits have held that a corporation (under a “pass-through” theory) may assert the free exercise religious rights of its owners; and the Third and Sixth Circuits have held that business owners’ free exercise rights are not burdened because it is the corporation, not the owners, which is funding the insurance coverage.
Oral argument is expected to take place in March.