The Hobby Lobby amicus effort.

Author:Amiri, Brigitte
Position:Marriage Equality and Reproductive Rights: Lessons Learned and the Road Ahead

Brigitte Amiri: Thank you so much for having me. I didn't realize that getting up early any day was an accomplishment, but thank you so much for coming and thanks for having me.

I'm going to talk a little bit about the cases pending before the Supreme Court that will be heard on March 25. (1) These are two cases brought by for-profit corporations that are challenging part of the Affordable Care Act that requires employers to cover contraception as part of a comprehensive health package. (2) And so I'll start by talking a little bit about the background of how these cases came about. And I will focus on the amicus efforts in the Supreme Court and the different voices we wanted the Court to hear from, and what we anticipate the Court doing, although for that we can flip a coin and that could be that discussion. But we'll get there.

The contraception rule is part of the Affordable Care Act and it requires all health plans to have all FDA-approved contraception covered in the plan without a copay. (3) So no-cost contraception in the health plan for all employees that are covered by an employer who is covered by the Affordable Care Act. (4) So that's employers that have fifty or more employees, that don't have grandfather plans. There are some little exceptions around the edge, but the idea is that you will have coverage for contraception without a copay. And this is part of a larger package to make sure that women have the healthcare that they need, including domestic violence treatment and counseling, certain prenatal care, STI testing. The contraception piece of it was a piece of a much broader package of women's healthcare that was included in the Affordable Care Act regulations.

The regulation for contraception exempts houses of worship, so churches don't have to comply. (5) Religiously affiliated non-profits do not have to comply if they have a religious objection to providing contraception, and what they do have to do instead is fill out a form and send it to their insurance company and say that they have a religious objection, and then the insurance company covers the cost of the contraception and communicates with the employees about that benefit. (6) So we'll put the non-profits aside. The for-profit corporations--there's no exemption. They have to comply. However, there have been a number of for-profit companies that are owned by individuals that say, "We have a religious objection to including contraception in our health plan for our employees." And those corporations have brought many lawsuits against the contraception rule across the country. The main claim that they have raised is under the Religious Freedom Restoration Act. (7) The federal RFRA is not often litigated after a case called Boerne v. Flores held that RFRA only applies to the federal government. (8) So here we have the federal government imposing a rule that certain companies claim violates their religious liberty rights. And so the main claim is the RFRA claim. (9)

And the analysis under RFRA is first whether--well, the threshold issue in these cases is whether corporations have the ability to exercise RFRA rights. (10) Are companies "persons," under RFRA, and can they exercise religious liberty rights? These cases have been brought all over the country and they've bubbled up through various Courts of Appeals and there's been a large circuit split. (11) So the threshold question has been, do companies--can a company exercise religious rights? And some Courts of Appeals have said no, and that's the end of the analysis. (12)

But assuming corporations have the ability to exercise religious liberty rights, the next question is whether their religion is substantially burdened. And "substantially burdened" is the key phrase under RFRA. (13) The companies say, "Yes, our religion is substantially burdened. We have to provide a health benefit that we object to based on our religious beliefs. We believe that life begins at conception and contraception interferes with that." And arguments of that nature.

Assuming there's a substantial burden on religion, then the next question is whether there's a compelling government interest that's narrowly tailored. (14) And the compelling government interests that are raised in these cases is whether there is a compelling government interest in furthering women's health and furthering women's equality, given the importance of contraception in the ability of women to make decisions about the number and spacing of their children, which affects their ability to participate equally in society. (15) And then there's the narrow tailoring question about whether this is the least restrictive means that the government can further their interest. (16) We'll get to some of these issues more when I talk about the amicus responses but I just wanted to lay out the framework first.

So as I said, there's a split in the circuits; cases are bubbling up. Two cases reached the Supreme Court first. One is a case out of the Tenth Circuit brought by a company called Hobby Lobby. (17) They are an arts and crafts chain store primarily in the Midwest. They employ 13,000 employees and they argue that they have a religious objection to providing a couple of forms of contraception. Similarly, another case out of the Third Circuit is brought by a company called Conestoga and they are a wood manufacturing company. (18) And they have similarly argued that their religion is burdened by having to provide contraceptive coverage to their employees.

So the cases--both of these cases were accepted and they will be heard on March 25. We expect a decision before the end of the Court's term in June. Since the Court usually reserves some of the more controversial decisions until the end of the term, we expect no decision until towards the end of June.

But I want to talk about some of the amicus efforts on our side, supporting the government. The ACLU in coalition with the National Women's Law Center and many other reproductive rights organizations including the Center for Reproductive Rights and Planned Parenthood and Physicians for Reproductive Health and a bunch others--we convened a call and we tried to decide what messages, what points we wanted the Court to hear, and which messengers should make those points. So, what were the different voices we wanted out there? We wanted to make sure there wasn't a tremendous amount of duplication. We were trying to narrow the number of amicus briefs and trying to encourage people to work together to file a single brief rather than having multiple briefs because frankly, the Court's just not going to read a ton of briefs. We were trying to get very specific, very concentrated and focused briefs and limit the number.

So we also then formed subgroups based on topic. All of the groups that were writing on women's health issues were talking to each other to avoid overlap. All of the groups that were going to talk about whether corporations have the ability to exercise religious liberty rights were talking to each other. We ended up with twenty-three amicus briefs, most of which, the coordinators knew about. There were a couple surprises. We did not know that Professor Marci Hamilton was going to file a brief arguing that RFRA was unconstitutional completely. (19) So that was a surprise! But most of the briefs that we knew about and we were working very close in coordination--the National Women's Law Center and the ACLU--we read all of the drafts of the briefs that we knew about to try to make sure that this duplication was limited, and that we were consistent on our points.

The other side filed fifty-nine briefs. (20) In this case...

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