On November 26, the U.S. Supreme Court agreed to address the constitutionality of the “contraceptive mandate” imposed under the Patient Protection and the Affordable Care Act (ACA), the second major ACA-related challenge in the last two years. The ACA requires most employers with more than 50 employees to provide health insurance that covers preventive healthcare, including women’s preventive care, without co-pays or deductibles. Under the regulations implementing the ACA, this includes a broad range of medical applications, such as cervical cancer screening and emergency contraception. With numerous federal courts divided on the constitutionality of the contraceptive mandate, and requests from parties on all sides of the debate to intervene, it was inevitable that the Court would take up this issue.

In determining the scope of women’s preventive services to be included under the ACA’s mandate, the Department of Health and Human Services (DHHS) engaged the Institute of Medicine (IOM) to examine the unique preventive needs of women. The IOM is an independent, nonprofit organization engaged by the government to provide unbiased, authoritative advice concerning healthcare matters. The IOM Committee, comprised of twelve women and four men, reviewed the evidence-based preventive services that are important to women’s health and wellbeing, and then recommended which of these should be considered for coverage. The Committee recommended eight preventive services, including the full range of FDA-approved contraceptive methods.

Under the HHS implementing regulations, houses of worship are excluded from the requirement to provide contraceptive coverage. Religiously affiliated nonprofit organizations, such as colleges and hospitals, are not exempt but may avoid providing contraceptive coverage directly; instead, insurers are required to provide coverage directly to employees at no cost to employer or employee. From an actuarial perspective, contraceptive coverage is considered to be more cost-effective than spending for alternative health services and unintended pregnancies. Covered employers who fail to comply with the mandate are subject to substantial fines in the range of $100/employee per day. Several million employees are not included in the mandate, either due to their employers’ religious affiliation, the size of their employer, or grandfathering provisions.

The Court accepted two cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Hobby Lobby is a nationwide chain of about 500 forprofit arts and crafts stores, whose owners argue that the mandate is unconstitutional because it violates the fundamental tenets of its religious faith, which is integral to the operation of the business. Conestoga raises similar issues.

Among the questions the Court is likely to address are the following:

(a) Neutrality. To determine whether the contraceptive mandate imposed under the ACA violates the Constitution’s First Amendment, the Court must determine whether the mandate is one of general applicability that does not single out any one religion or religious practice, even if it happens to burden religious exercise. The Court held in a 1990 case, Employment Division v. Smith, that “the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'”

(b) Religious Freedom Restoration Act of 1993 (RFRA). Congress passed RFRA to ensure robust First Amendment protection for free exercise of religion, in response to the perceived narrow interpretation of religious freedom in Smith. RFRA prohibits the federal government from imposing a “substantial burden” on a person’s “exercise of religion.”

RFRA applies a two prong test: If a law imposes a substantial burden on religious practice, it must serve a compelling state interest and be implemented using least restrictive means. The government contends that promoting women’s health and equality by means of affordable access to contraception is a compelling state interest, and that granting an exemption for religious employers satisfies the criterion of “least restrictive means.” The government argues the burden on employers is “slight” and “indirect.” Finally, it cites the IOM report to conclude that the law advances a compelling state interest in avoiding unwanted pregnancies, improving maternal and child health, and reducing health care costs that lead to poverty.

Opponents of the mandate deny the government can establish a “compelling” interest by requiring employers to provide contraceptive coverage and thus creating a marginal increase in access to contraception. Opponents also deny that promotion of the public health is a compelling state interest in this case, suggesting that “any such argument is undermined by the existence of numerous exceptions to the preventative care coverage,” such as for houses of worship, grandfathering, and small employers. The argument has also been framed as a claim that the government is denying equal protection by imposing different rules for different employers.

(c) Corporations, RFRA, and the First Amendment. Since the petitioners are corporations, the government argues that they are not entitled to assert a RFRA or First Amendment claim. RFRA specifically protects “a person’s exercise of religion” and the government denies that corporate petitioners can be deemed “person[s] exercis[ing] religion” pursuant to RFRA. Citing RFRA’s legislative intent, the government argues that fundamental principles of corporate law require a distinction between the corporation’s rights and responsibilities and those of its owners, and that the employers are not representatives of their employees.

Finally, the government contends that First Amendment protection of religion is only intended for persons who possess a religious conscience – and not corporations. The government points out that the framers of the Constitution intended to protect unempowered minorities from religious burdens. It would be contrary to constitutional theory to allow corporations to use religious freedom as a means to oppress employees for whom they choose health insurance plans, many of whom to not share their religious convictions.

Corporate petitioners argue that under Citizens United v. Federal Election Commission, corporations are considered people, at least for some First Amendment purposes. They argue that since religious organizations can create and govern themselves – and exercise freedom of religion vis a vis the contraceptive mandate – other corporations seeking to further religious objectives should not be denied equal protection of the laws merely because they are organized as forprofit corporations. Indeed, they point out that a corporation is simply an organization of people working together for common purpose.

(d) Freedom of Speech and Expressive Association. Finally, opponents of the mandate argue that requiring organizations to provide contraception coverage is tantamount to obligating them to endorse the use of contraception, violating their freedom of speech and expressive association. In essence, they argue the law burdens both speech and free association by requiring petitioners to condone behavior they consider objectionable. In response, the government argues the mandate regulates conduct, not speech, and employers are free to disseminate literature explaining the mandate and their positions on contraception. The Supreme Court is thus likely to address whether the conduct of providing contraceptive coverage is inherently “expressive.”

Oral arguments in these pivotal cases will not be heard until spring, and a decision is not likely until June.