The high court’s customary ideological divide, moreover, collapsed the last time justices considered the health care law. In June 2012, conservative Chief Justice John Roberts Jr. sided with liberals and wrote the 5-4 majority opinion upholding the law’s individual mandate.
The mandate requires individuals to purchase insurance or pay a penalty. The so-called contraceptive mandate now under fire is different. It regulates the breadth of coverage that employers must provide.
The health care law passed in 2010 requires that insurance packages cover certain preventive practices to be provided without fees or cost-sharing from the patient. Many are uncontroversial, like immunizations and diabetes screening. The package is also supposed to cover contraceptives, sterilization procedures and counseling.
Several of the approved contraceptive methods, such as the drug known as Plan B, are considered by anti-abortion advocates as tantamount to an abortion.
Churches are exempt, and employers with fewer than 50 workers need not provide any coverage at all. Religiously affiliated nonprofits have a special accommodation, so they don’t have to directly provide the contraceptive coverage.
But for-profit companies aren’t exempted, and those that don’t provide coverage face fines of $100 a day per employee. For Conestoga Wood Specialties, with about 950 employees, that adds up to $95,000 a day. For Hobby Lobby, the potential fine reaches a crippling $1.3 million a day.
“It forces them to choose between violating their religious convictions and incurring ruinous fines and lawsuits,” Conestoga Wood Specialties’ attorneys wrote in a brief.
The religiously affiliated companies’ case is complicated by the fact that a legal corporation exists precisely to be an entity distinct from individuals; in part, in order to limit the individuals’ legal liability. That seemingly makes it harder for the individuals’ beliefs and personal convictions to pass through to the corporation.
If the court nonetheless extends religious protections to corporations, the next question under the Religious Freedom Restoration Act is whether the contraception mandate imposes a substantial burden on the company. If yes, then the question after that is whether the mandate is the “least restrictive means” of supporting a “compelling interest.”