By John T. Murray, Justin T. Curley and Reanne Swafford[1]

Two years after upholding the constitutionality of the Affordable Care Act (ACA), the Supreme Court has narrowed the Act’s contraceptive coverage requirement, and opened the door to new challenges to ACA.  In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014), the Supreme Court considered whether the Religious Freedom Restoration Act of 1993 (RFRA) allows for-profit corporations to avoid ACA’s requirement that they provide insurance coverage for certain contraceptives on religious grounds.  In a 5-4 vote, the Court held that for-profit corporations—at least those that are closely held—can assert religious rights under RFRA and, on that basis, can obtain exemptions from ACA’s contraception coverage mandate.  Thus, Hobby Lobby and similar employers whose owners assert religious objections cannot be required to offer insurance coverage to their employees for contraceptive methods that conflict with the owners’ religious beliefs.

While Justice Alito’s majority opinion stressed that the ruling was limited to ACA’s contraceptive coverage mandate, the opinion does not necessarily foreclose attacks on other ACA provisions based on religious grounds.  Justice Ginsburg emphasized this very point in a strongly worded dissent.  Therefore, it is likely that, in the coming months, the courts will have to decide on new RFRA-based challenges to other ACA mandates.

These challenges could include objections to coverage for other forms of birth control, blood transfusions, prescription antidepressants and other mental health therapies, participation in trial studies that rely on the use of embryonic stem cells, vaccinations, or the implantation of replacement heart valves derived from animals, all of which are or could be objectionable to certain religious groups.  Indeed, the potential challenges to ACA’s coverage requirements based on religious grounds are as varied as individual religious convictions.

Likewise, although the majority limited its holding to closely held corporations, the majority opinion did not completely foreclose the possibility that corporations that are not closely held will attempt to also avail themselves of RFRA’s protections.  As a result it is conceivable that corporations that are not closely held—perhaps even publicly traded corporations—may try to make use of the same exemption, or seek new exemptions, based on the religious beliefs of individuals holding controlling interests in the companies’ stock.

By the time the Court issued its decision in Hobby Lobby, there were nearly 50 pending federal lawsuits brought by for-profit employers raising religious objections to various aspects of ACA’s contraceptive coverage mandate—this figure is sure to increase with other religious challenges to ACA in the wake of Hobby Lobby.

And it remains to be seen whether the challenges may expand to other faith-based objections.  For example, some employers may also seek to leverage Hobby Lobby to challenge healthcare coverage for same-sex spouses in the 19 states (with more likely to come) that permit same-sex marriage.  In fact, a group of religious leaders has already written a letter to President Obama in light of Hobby Lobby arguing for a RFRA exemption to a pending executive order that would prohibit federal contractors from discriminating against LGBT individuals in hiring practices.  However, the courts may cast a critical eye on these claims, as Justice Alito’s opinion cautioned that the decision should not be read to provide a shield for discrimination (although the opinion only specifically references race discrimination), and the federal government might also argue that it has no obvious, readily available alternative to provide same-sex spouses with the benefits that would otherwise be provided by an employer.

Hobby Lobby has set the stage for new waves of litigation beyond the narrow bounds of benefits coverage for certain forms of contraception—only time will tell how and to what extent the decision will play out in the lower courts.

 

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