|December 5, 2013|
Previously published on December 2, 2013
The Supreme Court will review two of the numerous lawsuits challenging the Affordable Care Act’s (ACA) requirement that group health plans and insurers cover, without cost-sharing, contraceptives and/or abortifacients (the “Contraceptive Mandate”). The plaintiffs in these suits are secular, for-profit corporations and their owners, and they assert that being forced to comply with the Contraceptive Mandate would violate their First Amendment religious rights and would also violate the Religious Freedoms Restoration Act (“RFRA”).
All courts addressing the various Contraceptive Mandate suits have struggled with the issue of whether secular, for-profit corporations are covered under either the First Amendment or RFRA (which generally prohibits federal law from imposing a burden on any “person’s” religious freedom). This year, a circuit split developed: the Seventh, Tenth, and D.C. Circuits adopted a “pass through” theory that allowed the corporations to assert the free exercise rights of their owners, and held that the Contraceptive Mandate places a substantial burden on the plaintiffs’ religious freedoms. The Third and Sixth Circuits, in contrast, have rejected the argument that secular, for-profit corporations can exercise religion, and have held that the owners are not burdened since it is the corporation, not the owners, who would be funding this coverage.
The Supreme Court is likely to schedule oral argument for March, and a ruling is expected in June. Because the Court will address the religious rights of for-profit corporations, the ruling may have significance beyond the Affordable Care Act.