By Laura Anne Taylor
The October Term 2013 docket for the U.S. Supreme Court contains only a limited number of cases that directly implicate health law issues. Setting aside the patent cases that may affect biotechnologies, which will be reviewed in a separate Center for Law and Biomedical Sciences blog post, four pending cases pose questions that impact health law; all involve access to reproductive healthcare. More specifically, two relate to access to abortion services (certiorari for one of these has since been dismissed) and two relate to the contraceptive mandate provisions of the Affordable Care Act (ACA).
Oral arguments for the two contraceptive mandate cases are scheduled for March 25th, and the cases have substantive similarities: both ask whether for-profit corporations have religious freedom rights that either permit or require an exception to the ACA’s so-called “contraceptive mandate.” The “contraceptive mandate” refers to two provisions of the ACA that work together to require employers to provide health insurance to their employees that meets a minimum standard of coverage, which is defined to require full coverage for certain preventive services, including contraceptive services and counseling.
The widely-publicized Hobby Lobby case involves a religious freedom claim arising under the Religious Freedom Restoration Act (RFRA), a federal law that provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least-restrictive means to further a compelling government interest—commonly known in constitutional law jurisprudence as a “strict scrutiny” test. The question certified for review in Hobby Lobby asks:
The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. The question presented 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.
Conestoga involves a similar claim—that the contraceptive mandate imposes a burden on the religious free exercise of a for-profit corporation and its owners—however, the Conestoga claim potentially implicates both the Free Exercise clause of the Constitution and RFRA, whereas the claim in Hobby Lobby is keyed specifically to RFRA. The question certified for review in Conestoga asks “[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.” When granting review, the Court stated it would decide both constitutional issues as well as the RFRA claim.
Individuals, such as the owners of the Conestoga and Hobby Lobby corporations, and religious organizations, such as churches and religious non-profits, clearly have constitutionally protected rights to religious freedom. But the Court has never ruled on the issue of whether for-profit corporations, which engage in primarily commercial activity, can have religious beliefs—and more importantly, rights—separate from those of their owners. In both cases pending before the Court, the corporations are neither owned by nor affiliated with any official religious organization, but are closely-held private entities owned by individuals with personal religious beliefs. Thus, a primary issue in both cases is whether the ACA mandate imposes a burden on the religious free exercise of the corporation’s owners, the corporation itself, or both. Because Hobby Lobby is a challenge under RFRA, one issue facing the court is whether a closely-held family corporation qualifies as a “person” under the statute, and if not, whether the mandate imposed on the corporation constitutes a burden on corporation’s owners. Another key issue in both cases is whether a corporation itself is capable of “exercising” religion, or, alternatively, whether it can exercise the religion of its owners under “pass through” theory.
The Court’s answers to these questions will have a significant impact on availability of contraceptive coverage for employees of privately-held corporations, though it is difficult to estimate how many women might be affected. The decisions will be most important for employees whose religious beliefs differ from those of their employers—for instance, women who want contraceptives, but whose employers have a religious objection to being involved in providing them. If the Court rules that the contraceptive mandate impermissibly burdens the free exercise rights of either the corporations or their owners in these cases, such a ruling might require an exemption from the contraceptive mandate for any employer that claims a religious objection, regardless of whether the employer is a for-profit, a non-profit, or an individual. Employers entitled to an exemption would potentially be permitted to provide employees with health insurance that does not cover contraceptive services—effectively leaving some employees access to contraceptive services only if they pay for those services outside of their employer-sponsored health insurance plans. The current exemption for “religious employers” is complemented by an accommodation for eligible group health plans and student health insurance coverage that allows covered individuals to receive contraceptive services without cost-sharing despite their plans not covering such services; it is possible this accommodation could be extended to cover plans offered by other exempt entities if the Court rules in favor of Hobby Lobby and Conestoga. Alternatively, if the Court rules against the corporations in these cases, for-profit corporations will likely be required to comply with the generally applicable contraceptive mandate regardless of any personal religious objections of their owners, fulfilling an important policy goal of the ACA: “provid[ing] women with access to contraceptive coverage without cost sharing, thereby advancing the compelling government interests in safeguarding public health and ensuring that women have equal access to health care.”
 Cline v. Oklahoma Coal. for Reprod. Justice, 292 P.3d 27 (Okla. 2012), cert. dismissed as improvidently granted, 134 S.Ct. 550 (2013) (per curiam); McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013), cert. granted, 133 S.Ct. 2857 (2013). Cline, which will not be heard this term, raised the issue of whether a state can outlaw the off-label use of misoprostol for medical abortion. The Court heard arguments in McCullen on January 15, 2014 on the issue of restricting speech within thirty-five feet of the entrance to a “reproductive health care facility.” McCullen, 708 F.3d at 3.
 Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir.), cert. granted, 134 S.Ct. 678 (2013); Sebelius v. Hobby Lobby Stores, Inc., 723 F.3d 1114 (10th Cir.), cert. granted, 134 S.Ct. 678 (2013).
 The employer mandate requires that employers with fifty or more full-time employees offer group health insurance, with cost-sharing of premiums allowed as between the employee and employer. 26 U.S.C. § 4980H (2013). Another provision of the ACA requires all group health plans to cover certain “preventive health services” with no cost sharing, including reproductive health preventive care such as certain screenings and, importantly, contraception. 42 U.S.C. § 300gg-13(a)(4); Women’s Preventive Services Guidelines, HRSA.gov, http://www.hrsa.gov/womensguidelines/ (coverage for “contraceptive methods and counseling”). Currently, non-profit “religious employers” are exempt from the requirement to provide contraceptive services, but there is no exception for for-profit employers. See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39870 (July 2, 2013).
 The Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq. (2013).
 Petition for Writ of Certiorari, Hobby Lobby, No. 13-354 (Sept. 19, 2013) (internal citation omitted).
 Petition for Writ of Certiorari, Conestoga, No. 13-356 (Sept. 19, 2013).
 Lyle Denniston, Court to rule on birth-control mandate (UPDATED), SCOTUSblog (Nov. 26, 2013, 12:20 P.M., updated 3:47 P.M.), http://www.scotusblog.com/2013/11/court-to-rule-on-birth-control-mandate/.
 See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
 As defined in the exemption, this applies only to non-profit entities that are classified as religious organizations for tax purposes.
 See Women’s Preventive Services Guidelines, supra note 3.
 Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39870, 39872 (July 2, 2013).