Supreme Court to Hear HHS Mandate Cases


By Hadley Heath

Today the Supreme Court announced that it will hear two cases that challenge the HHS mandate that employers provide insurance coverage for all FDA-approved contraceptives. 

The cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp v. Sebelius.

In the Hobby Lobby case, the government is now the challenger. The arts-and-crafts giant won at the 10th Circuit Court of Appeals this summer.  This case is perhaps the most well-known of any of the HHS mandate cases: The Green family, who owns Hobby Lobby Stores, Inc., says that providing coverage for a handful of treatments included in the mandate (including the "morning-after" and "week-after" pills) would be a violation of their evangelical Christian religious beliefs. Their case centers largely around protections under the Religious Freedom Restoration Act (RFRA) of 1993.

The Conestoga Wood plaintiffs have taken a different road to SCOTUS, but the basic storyline is the same. The Hahn family, who practice the Mennonite faith, own a cabinet-making business. Their case lost at the 3rd Circuit Court of Appeals, and centers not just on RFRA but also First Amendment rights. If you haven't been following this case as closely, here's a short video from Alliance Defending Freedom, the watchdog group that is litigating the case:

As attorney Matt Bowman said in this clip, this case is about more than birth control or drugs that may induce abortions. These cases - both the Hobby Lobby and Conestoga cases - are about the broader questions of religious rights in the context of doing business.

For the law nerds, here's a good explanation from Lyle Dennison at SCOTUSblog:

It is already clear, of course, that individuals — whether they own businesses or not — do have religious beliefs that the government may not try to regulate.  But it is not yet clear, and these cases will test the issue, whether they have a right — constitutional or based on a 1993 federal law — to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith

On the other hand, it is not clear that a business that is formed as a corporation, and engages in a strictly commercial kind of activity, can have religious beliefs and can actually base its commercial actions upon such faith principles (separate from the religious beliefs of its owners).  The Court has never ruled on that issue, but that is one of the core issues it has now agreed to consider.

In the government case — that is, the one involving the arts and crafts retailer, Hobby Lobby — the answer to questions about both the individual owners of a closely held business and the business itself as a separate entity arises under the Religious Freedom Restoration Act.  That law specifies that the government cannot impose a “substantial burden on a person’s exercise of religion,” unless the government can prove that the burden serves “a compelling governmental interest” and that it is also “the least restrictive means” of doing that.


There is no doubt that the individual owners are persons.  But the Court must decide whether the pregnancy-related insurance coverage does, in fact, put a burden on the individual owners, or whether any burden is on the business itself, rather than its owners.  That is the issue so far as individual owners’ claim under RFRA goes.

But Tuesday’s order granting review did not stop with the government case, and it did not stop with the RFRA issues.  By also agreeing to review the plea by a Pennsylvania company that makes wooden cabinets (Conestoga Wood Specialties), and its Mennonite family owners, the Court expanded considerably the scope of its review.  That case, in addition to the RFRA issues, also raises issues under the First Amendment’s guarantee of a right to freely exercise one’s religion.

The issue before the Court is whether the business itself is capable of “exercising” religion.  If it is not, that would imperil, but perhaps not destroy altogether, its First Amendment claim.  The Court might also have to decide whether, even if a profit-making firm does not exercise religion on its own, it can exercise the religious preferences of its owners — that is, by what lawyers call a “pass through” theory, with the owners’ religious views passing through to the corporation they have created.

These cases will most likely be heard in March, with the Court planning to dedicate one hour of oral argument to each. The Court will rule in summer 2014.


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