F. Achouri Central question whether businesses must provide coverage for contraceptions at no cost, even if owners object on religious grounds
On Tuesday, the US supreme court is expected to hear oral arguments in two highly anticipated cases involving Barack Obama‘s healthcare law, that pits the religious rights of employers against the reproductive rights of women. 
Coming two years after America’s highest court upheld the controversial healthcare law in a narrow ruling, the case raises profound questions, not only over the role of employers in the lives of individuals and whether corporations can have religious rights, but also of gender equality in healthcare.
The central question to be debated over 90 minutes of oral arguments on Tuesday is whether for-profit corporations must provide insurance coverage for all contraceptions at no cost as the act requires, even if the corporation’s owners object on religious grounds.
The first of the two cases was brought by Hobby Lobby Stores Inc, an Oklahoma-based arts and craft chain and Mardel, a chain of Christian bookstores. Both are owned and operated by David and Barbara Green and their children, who are evangelical Christians.
The other case was brought by Conestoga Wood Specialities Corp, a cabinet-making business run by a Mennonite family in Pennsylvania, owned by Norman and Elizabeth Hahn and their three sons. The Hahns and the Greens say the contraceptive mandate would violate their religious beliefs. Both corporations have stressed their aims to operate within their Christian principles while competing in a secular marketplace.
Hobby Lobby says it has no moral objection to providing 16 out of the 20 – FDA-approved contraceptives under the ACA mandate, but takes issue with emergency contraception, such as Plan B and IUDs. It says its « religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception. »
The companies suggest that emergency contraceptives such as Plan B and Ella interfere with implantation in the uterus, which is disputed by medical experts.
Churches and places of worship are already completely exempt from the contraception mandate.
But for-profit companies aren’t exempted and face fines of $100 a day per employee, if they do not cover it. For Conestoga Wood with about 950 employees, that adds up to $95,000 a day. Hobby Lobby, which has 13,000 workers, estimates the penalty in not complying could cost $475 per year.
« It forces them to choose between violating their religious convictions and incurring ruinous fines and lawsuits, » Conestoga Wood Specialties’ attorneys wrote in a brief.
Central to the case is whether for-profit companies have a right to exercise religious freedom under either the first amendment’s free exercise clause or under a federal law, the Religious Freedom Restoration Act. Under the 1993 federal law, the government is prohibited from imposing a substantial burden on religious exercise, unless it demonstrates a compelling interest and employs the « least restrictive means » of furthering that interest.
The lower courts were split on the issue. Hobby Lobby won at the 10th circuit court of appeals, in a ruling that said the firm was a « person » under the RFRA. Conestoga Wood lost at the third circuit court of appeals, because the court said that for-profit secular corporations could not engage in religious exercise under the RFRA. The supreme court agreed to settle the rulings.
Adam Winkler, a professor specialising in constitutional law at the University of California, who supports the mandate, said:
« It is very difficult to predict. There are several justices who seem eager to strike down a provision of Obamacare. Legal arguments are close on either side. »
Winkler said the case touched on three issues: « One is, are corporations people under the RFRA? Two, if they have to provide the birth control provision of Obamacare, is it a substantial burden on Hobby Lobby’s religious freedom? »
« Three, if Hobby Lobby is a person for the purposes of the law, and if the provision is a burden, does the government have a significant interest? »
« I think the court could go any way on all three. »
However, he cited a previous supreme court case involving a conflict between religion and employees, US vs Lee, as a case where religious freedoms were said to be violated, but which ultimately went against the employer.
Winkler said: « One of the things the US says in the US vs Lee case is that the problem of giving religious exemption is the owners are going to impose their religious beliefs on employees. That’s what would happen here. »
In US v Lee, the supreme court ruled that an Amish employer, Edwin Lee, did not have the right to avoid paying social security tax on employees, despite his religious beliefs that is was immoral to do so. The court agreed that his religious rights had been violated, but ruled that the broad public interest served in maintaining a tax system was so important that the conflict did not afford him a basis for not paying the tax. Furthermore, it ruled that it would impose his religious beliefs on others.
Some supporters of the mandate have argued that if the court finds in Hobby Lobby’s favour, it could usher in a raft of anti-gay laws akin to the recent Arizona bill to allow businesses to deny services to gay and lesbians on religious ground, and other kinds of legalised discrimination under the banner of religious freedom. Last month, the governor of Arizona vetoed the religious freedom bill after a fierce backlash against it.
David Gans, director of the human rights and citizenship programme at the Constitutional Accountability Center, said if the court granted businesses a right to religion, it could set a « dangerous precedent. »
« The supreme court has never given businesses the right to exercise religion » said Gans, the author of the centre’s amicus brief, one of two dozen filed in support of the government.
« If it succeeds we will see waves of claims that businesses should be exempt from civil rights protection. »
Planned Parenthood have said the current cases are « cut form the same dangerous cloth » as the Arizona bill and would roll back the clock on the nation’s carefully struck balance to respect religious liberties while maintaining rights for all.
Hobby Lobby, a family run business who strive to run it along their religious beliefs, argue that, because of that they are entitled to the same religious freedom exemptions from the mandate that religious organisation have been afforded
Gans said:« Hobby Lobby wants to be treated as a corporation when it comes to all the special privileges and when it comes to exercising freedom of conscience, they say ‘we are the owners’.That is a fundamental problem. Corporations don’t pray, they don’t exercise religions in any sense of the word. »
Gans said: « The critical question is: will they court say for the first time in 225 years that corporations have free exercise rights? The court has never done that, and it shouldn’t do it now. »
A ruling is expected in early June.
The Guardian
