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Today the Supreme Court

agreed to hear two cases that challenge Obamacare’s contraceptive
mandate as a violation of religious freedom. Last year the
Court
upheld the requirement that individuals obtain
government-approved medical coverage by treating it as an exercise
of the tax power. This will be the Court’s second opportunity to
assess the legality of the Patient Protection and Affordable Care
Act.

In one of the cases the court plans to hear,
Sebelius v. Hobby Lobby Stores, David and Barbara
Green, who own the Oklahoma-based chain together with their three
children, argue that forcing them to provide their employees with
health plans that cover certain forms of contraception violates the
Religious Freedom Restoration Act (RFRA). The Greens specifically
object to four kinds of contraception—Ella, Plan B, and two
IUDs—that work by preventing implantation of fertilized ova, which
they view as morally equivalent to abortion. 

RFRA, which Congress passed almost unanimously in response to a

1990 Supreme Court decision that loosened the restraints on
laws that limit religious freedom, says “government shall not
substantially burden a person’s exercise of religion”
unless the burden is “narrowly tailored” to serve a “compelling”
interest. Last June the U.S. Court of Appeals for the 10th Circuit

ruled that the contraceptive mandate probably fails this
test, especially since it already exempts as many as 100 million
health plans, including those offered by churches and other
nonprofit religious organizations. The court also noted that the
Greens have no religious objection to 16 of the 20 contraceptives
covered by the mandate.

The other challenge to the contraceptive rule,
Conestoga Wood Specialties v. Sebelius, involves a
Pennsylvania cabinet company owned by the Hahns, a Mennonite
family. The Hahns, like the Greens, object to contraceptives that
prevent implantation rather than fertilization. But in July the
U.S. Court of Appeals for the 3rd Circuit
rejected their RFRA claim, concluding that their business is
not covered by the statute because it is a for-profit corporation
and therefore does not qualify as a “person.” The Court held that
“a for-profit, secular corporation cannot engage in the exercise of
religion.”

The 10th Circuit rejected this distinction. “It is beyond
question that associations—not just individuals—have Free Exercise
rights,” it said, quoting a 1984 Supreme Court decision: “An
individual’s freedom to speak, to worship, and to petition the
government for the redress of grievances could not be vigorously
protected from interference by the State unless a correlative
freedom to engage in group effort toward those ends [was] also
guaranteed.” If people do not lose their religious freedom when
they exercise it through nonprofit corporations (such as churches)
or for-profit businesses that are not incorporated, the 10th
Circuit asked, why should they sacrifice this right when they
combine the corporate form with a profit motive? For example,
“Would an incorporated kosher butcher really have no claim to
challenge a regulation mandating non-kosher butchering practices?”
The 10th Circuit noted that the Supreme Court, in the 2010
case Citizens
United v. FEC, overturned restrictions on political
speech by both commercial and nonprofit corporations, recognizing
them as tools that individuals use to exercise their First
Amendment rights. 

In a 2007 Reason article, I
explored RFRA’s implications for religious rituals involving
prohibited drugs.