Supreme Court: Private employers need not provide contraception coverage

July 16, 2014

On June 30, in a 5-4 ruling, the U.S. Supreme Court held that closely held for-profit corporations cannot be required to provide contraception coverage. The requirement is part of the Affordable Care Act’s (ACA) provision requiring private companies to include contraception in the group health care coverage the law requires large employers to offer. Religious employers, such as churches, as well as religious nonprofit organizations are already exempt from this contraceptive mandate.

The Court, ruling in the cases Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties v. Burwell, said that the government failed to show that the mandate is the least restrictive means of advancing its interest in guaranteeing cost-free access to birth control. Justice Anthony Kennedy said that the government could pay for the coverage itself, so that women receive it. Indeed, some believe that the Obama administration will by regulation provide for the government to pay for the coverage, avoiding a substantial gap in coverage.

The decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates — that is for blood transfusions or vaccinations — necessarily fail if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. The decision strongly suggests it would reject broad religious claims to, for example, discriminate against gay employees.

At the heart of the question was whether the Religious Freedom Restoration Act of 1993 (RFRA), which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners. The Court opinion said that RFRA requires the government to provide closely held corporate objectors the same accommodation it already provides nonprofit organization objectors.

The owners of the companies that argued against the provision objected on religious grounds to providing two types of contraception – emergency “morning after” pill and intrauterine devices (IUDs) – that prevent embryos from implanting in a woman’s uterus. Because the owners believe that human life begins at conception, they therefore believe that if the corporations were to cover those types of birth control, they would in essence be “complicit in abortion.”