On November 26, 2013, the Supreme Court of the United States agreed to hear challenges to the requirement that employer-provided health insurance include certain contraceptive methods.  The Supreme Court will consider two cases: Hobby Lobby Stores, Inc., et al., v. Sebelius, et al. from the Tenth Circuit Court of Appeals and Conestoga Wood Specialties Corp., et al. v. Sebelius, et al. from the Third Circuit Court of Appeals.  The critical issue is whether for-profit, secular corporations that operate based on religious principles can assert the Free Exercise Clause and seek relief under the Religious Freedom Restoration Act (RFRA).  The answer to this question will determine whether these corporations may challenge the Patient Protection and Affordable Care Act (ACA) requirement for post-fertilization contraceptives, like Plan B, based on religious grounds. 

The ACA requires employers with 50 or more employees to provide their employees with a minimum level of health insurance.  Further, it requires non-exempt group plans to provide coverage without cost-sharing for preventative care and screening for women in accordance with the guidelines set by a sub-agency of the Department of Health and Human Services. The guidelines require coverage for approved contraceptive methods, among other things.  The approved contraceptive methods include contraceptives like intrauterine devices and emergency contraceptives (Plan B and Ella), which may be used post-fertilization.  As of June 1, 2013, employers that fail to comply with the ACA face penalties of $100 per day per offending employee and possible litigation brought by the Department of Labor and plan participants. 

In Hobby Lobby and Conestoga Wood, for-profit, secular corporations, which do not meet the exemptions outlined in ACA for religious organizations, challenged the mandate requiring coverage of certain post-fertilization contraceptives on religious grounds.  However, the Tenth and Third Circuits came to completely different conclusions on the issue of whether these corporations could challenge the ACA on such grounds.  The Tenth Circuit found that the corporations have standing to seek relief under the RFRA.  The Third Circuit found that the corporations could not seek relief under the RFRA and challenge the ACA on religious grounds. 

The Supreme Court will now decide whether these for-profit, secular corporations may assert the Free Exercise Clause and challenge the ACA under the RFRA.  When the Supreme Court does render its opinion, it will be the first decision on the issue of whether for-profit, secular corporations can engage in the exercise of religion and assert claims under the Free Exercise Clause.