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Topics: Obamacare

Supreme Court takes straightest path to overturning contraception mandate

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Beltway Confidential,Opinion,Philip Klein,Obamacare,Supreme Court,Health Care,Abortion,Religion,Contraception,HHS,Hobby Lobby

After a long, politically and emotionally charged debate, the Supreme Court took the straightest path to ruling that it was illegal for President Obama's Department of Health and Human Services to force religious employers to violate their beliefs by purchasing insurance for workers that offered contraceptive coverage.

The opinion, written by Justice Samuel Alito and joined by four of the Court's more conservative judges, didn't establish any broad new Constitutional principles, but rather ruled that the contraception mandate violated the Religious Freedom and Restoration Act, a 1993 law that was signed by President Bill Clinton.

Though the majority accepted that the government had a compelling interest in increasing access to contraception, the justices held that the mandate “substantially burdens the exercise of religion” and that HHS didn’t use the “least restrictive means” to promote this government interest, tests required by RFRA.

Essentially, the majority ruled, owners of the companies who brought suit -- arts and crafts chain Hobby Lobby and wood working company Conestoga Wood Specialties -- were placed between a rock and a hard place by the contraception mandate.

“If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price — as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies,” read the opinion.

The millions of dollars in costs represents the accumulated penalties for refusing to purchase insurance that includes the contraception coverage required by HHS.

“If these consequences do not amount to a substantial burden, it is hard to see what would,” Alito wrote.

Furthermore, the justices ruled that the government imposed this substantial burden in a way that didn’t use the least restrictive means of expanding access to contraception.

“There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives,” the opinion concluded.

As an example, Alito cited the fact that HHS carved out an accommodation for religious non-profits that is less restrictive.

His opinion rejected the argument that religious freedom somehow wouldn’t apply to religious owners of corporations.

“The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs,” read the opinion.

In a dissenting opinion, Justice Ruth Bader Ginsburg, joined by three liberal colleagues, warned that the decision would have sweeping consequences. “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs,” Ginsburg wrote.

But the majority rejected this slippery slope characterization of their decision. “[O]ur holding is very specific,” Alito wrote for the majority. “We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises” can opt out of all laws outside of taxes.

Later, Alito noted that HHS and the dissenters claim that the ruling would lead “to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. … Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of (the Affordable Care Act’s) coverage requirements other than the contraceptive mandate.”

He went on to write, “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”

The bottom line is that to provide free access to contraception, the Obama administration has to either find a less restrictive way to go about it or successfully campaign to repeal RFRA. But business owners wanting to challenge government regulations won't be able to easily cite religious objections and lean on this opinion. Any future challenges would have to prove that other government regulations also fail to meet the tests imposed by RFRA.

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