For-Profit Crusaders: The Accommodation of For-Profit Entities in the Contraception Mandate

AuthorJessica N. Paulik
PositionJessica N. Paulik, J.D., Capital University Law School (May 2015); B.A. English Literature, Capital University (2012). I want to extend my gratitude and appreciation to Professor Jim Beattie for his enthusiasm and honest advice through this writing process. I would like to thank my family for being a constant source of support and motivation...
“[M]y pledge to the American people . . . is that we’re going to solve the
problems that are there, we’re going to get it right, and the Affordable Care
Act is going to work for the American people.”1
President Barack Obama ran for office on a platform that consisted,
among other things, of substantial health care, and Medicaid reform.2 He
believed in affordable coverage for all Americans, with a range of options
in health care plans for individuals and families to choose from.3 On March
23, 2010, President Obama signed into law the Patient Protection and
Affordable Care Act (“ACA”).4 The ACA put into place a series of health
care reforms across the country, including an individual mandate to obtain
and maintain minimum medical insurance coverage and a requirement that
Copyright © 2015, Jessica N. Paulik.
* Jessica N. Paulik, J.D., Capital University Law School (May 2015); B.A. English
Literature, Capital University (2012). I want to extend my gratitude and appreciation to
Professor Jim Beattie for his enthusiasm and honest advice through this writing process. I
would like to thank my family for being a constant source of support and motivation and for
always cheering in my corner. Finally, I owe thanks to Seth for h is continued patience and
encouragement throughout my law school studies and career.
1 Barack H. Obama, President of the United States, News Conference at the White House
on the Affordable Care Act (Nov. 14, 2013) (transcript available at http://www.washington
2 See Kevin Sack, et al., On the Issues: Health Care, N.Y. TIMES, http://elections. (last visited Dec. 31, 2014) (explaining that
Obama favors a larger governmental role in American healthcare with ultimate goals of
providing “universal coverage” and expanding eligibility for Medicaid and other public
health plans).
3 See id.
4 Health Care That Works for Americans, THE WHITE HOUSE, http://www.whitehouse.
/healthreform/healthcare-overview (last visited Dec. 31, 2014) (“On March 23, 2010,
President Obama signed the Affordable Care Act into law, putting in place compreh ensive
reforms that improve access to affordable health coverage for everyone and protect
consumers from abusive insurance company practices.”).
employers and health insurance companies provide certain medical
Although the American public seemed ready, it did not take long for the
constitutionality of the ACA to be challenged.6 One of the biggest sources
of distress regarding the statute arises from the contraception mandate,
which requires employers to provide no-cost preventative healthcare,
including birth control and sterilizations, to female employees.7 While
arguments from the non-profit sector won the President’s approval and
gained one of the few exceptions to the mandate, the arguments surrounding
for-profit corporations continued to clog the circuit court dockets.8 Plaintiff
corporations and their owners asked courts to recognize their free-exercise
of religion, and they continued to demand an exemption under the health
care law.9 These corporations recently found themselves one step closer, as
the Supreme Court held the contraception mandate unconstitutional “as
applied to closely held corporations.”10
This Article analyzes the arguments surrounding the for-profit litigation,
beginning with a general background on the ACA and the provisions
therein.11 Next, this Article outlines the original circuit court split and the
5 See, e.g., 26 U.S.C. § 5000A(a) (2012); 42 U.S.C. § 1396a(a) (2012); 42 U.S.C. §
330gg-13(a) (2012).
6 See e.g., Virgina ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010)
(Virginia state sought relief by claiming the ACA violated Virgin a’s Health Care Freedom
Act.); Florida ex rel. McCollum v. U.S. Dep’t. of Health & Human Servs., 716 F. Supp. 2d
1120 (N.D. Fla. 2010) (Florida state, two citizens, and a business federation sought relief
from the individual mandate of the ACA.); U.S. Citizens Ass’n v. Sebelius, 754 F. Supp. 2d
903 (N.D. Ohio 2010) (Association sought relief under the Commerce Clause and other
constitutional provisions.).
7 Warren Richey, Supreme Court Contraception Mandate Case Sparks Fierce Debate,
CHRISTIAN SCIENCE MONITOR, Nov. 26, 2013 , available at
8 See 26 U.S.C. § 5000A(d)–(e); Dan Merica & Kevin Bohn, Finalized Rules Let
Religious Groups Opt Out of Contraception Mandate, CNN (June 28, 2013, 2:54 PM), http://; Jennifer Haberkorn, 5
Key Questions About the Legal Issues of th e Contraception Mandate, POLITICO (Jan. 13,
2014, 8:44 AM),
101715.html (“The contraceptive coverage issue is alread y heading to the Supreme Court in
two cases brought by for-profit companies.”).
9 Merica & Bohn, supra note 8.
10 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785 (2014).
11 See discussion infra Part II.
Supreme Court decision in Burwell v. Hobby Lobby.12 While addressing the
holding in several places, the analysis focuses on the general precedent that
exists and the arguments that support the Supreme Court’s ultimate
holding.13 This Article further analyzes the arguments arising out of Free-
Exercise claims under the Religious Freedom Restoration Act and the
Establishment Clause.14 The Article identifies an ambiguous middle ground
that exists between the First Amendment clauses and determine if an
accommodation is required or permitted.15 Finally, this Article proposes a
solution to the overarching church-state issue by arguing that Congress
should exercise its Article I spending powers in an attempt to accommodate
the religious beliefs of its citizens and businesses.16
The ACA contains nine titles, each describing the major areas affected
by this law.17 The overall purpose of the ACA is to provide immediate
improvements, such as eliminating limits on benefits, requiring coverage for
preventative services and immunizations, and extending dependent
12 134 S.Ct. 2751 (2014); see discussion infra Part II.B.
13 See discussion infra Part III.
14 See discussion infra Part III.
15 See discussion infra Part IV.
16 See discussion infra Part IV. The author acknowledges that between the time this
Article was written and the date it was published, the contraception mandate has again been
reviewed and additional processes put in p lace. See, e.g., Lawrence Hurley, Supreme Court
Throws Out Obamacare Contraception Ruling, HUFFINGTON POST (Apr. 27, 2015),
contraception_n_7151868.html (discussing a more recent Su preme Court case holding in
favor of religious objectors); Kimberly Leonard, After Hobby Lobby, a Way to Cover Birth
Control, U.S. NEWS & WORLD REPORT (July 10, 2015, 5:35 PM),
workaround (discussing a new accommodation allowing “some for-profit companies to notify
the federal government about their religious objections and to request opting out of providing
coverage for contraceptives.” Insurance companies and employees will work out a separate
plan for contraceptives.).
17 The Patient Protection and Affordable Care Act Detailed Summary, Democratic Party
Communications 1 (last visited Jan. 8, 2015)
healthbill04.pdf. These titles include: “[q]uality, affordable healthcare for all Americans,
[t]he role of public programs, [i]mproving the quality and efficiency of health care,
[p]revention of chronic disease and improvi ng public health, [h]ealth care workforce,
[t]ransparency and program integrity, [ i]mproving access to innovative medical therapies,
[c]ommunity living assistance services and supports, [and] [r]evenue provisions.” Id.

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