On November 26, 2013, the United States Supreme Court announced it would hear two cases that test the provision of the Affordable Care Act (ACA) known as the contraceptive mandate, which requires employer-provided group health insurance plans to cover certain preventative health services, including contraceptive methods, sterilization procedures, and related patient education and counseling. In the two cases at issue, the employers are for-profit secular corporations whose owners oppose the contraceptive coverage requirement on religious grounds.

The two cases before the Supreme Court are Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties v. Sebelius.  In the Hobby Lobby case, the Government seeks review of the Tenth Circuit’s decision that held that the employers had established a likelihood of success that their rights under the Religious Freedom Restoration Act (RFRA) of 1993, 42 U.S.C. § 2000bb et seq., were “substantially burdened” by the contraceptive coverage requirement.  The specific question presented by the Government is “whether RFRA 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.”  In the Conestoga Wood Specialties case, the Third Circuit reached the opposite conclusion from the Tenth Circuit and held that the plaintiffs were unlikely to succeed on the merits of their RFRA claims.  The plaintiffs in that case ask the Supreme Court to decide “[w]hether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the ACA.”  The two cases have been consolidated and one hour has been allotted for oral argument.

Reporter, Jennifer S. Lewin, Atlanta, + 1 404 572 3569, jlewin@kslaw.com