Media Guide To The Legal Experts, Religious Authorities, And Medical Professionals Arguing For The Contraception Mandate Before The Supreme Court

The Supreme Court will soon hear Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporations an unprecedented religious exemption from the Affordable Care Act's “contraception mandate,” which requires all health insurance to cover preventive services like birth control without co-pays. A wide spectrum of scholars and experts have filed amicus briefs explaining that a ruling in favor of the corporate plaintiffs would not only rewrite First Amendment law, but also undermine decades of anti-discrimination and reproductive rights precedent.

This Attempt To Avoid Generally Applicable Law Based On A Religious Exemption Challenges Long-Established Precedent

Constitutional Accountability Center: Since The Ratification Of The First Amendment, “This Court Has Never Held That Secular, For-Profit Corporations May Assert Rights Under The Free Exercise Clause.” The amicus brief of the Constitutional Accountability Center, a leading public interest think tank and law firm, pointed out that the First Amendment and the Free Exercise Clause have never been held to apply to non-religious and for-profit corporations like the craft store chain plaintiffs in the Hobby Lobby case, because the “protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion”:

The corporate plaintiffs' argument that they enjoy free exercise rights under the First Amendment and RFRA is in conflict with the text, history, and purpose of the First Amendment's free exercise guarantee. Amicus submits this brief to demonstrate that throughout our nation's history, corporations have been treated differently than individuals when it comes to fundamental, personal rights of conscience and human dignity. The First Amendment's free exercise guarantee has always been viewed as a purely personal liberty, guaranteeing the right of individuals to worship and exercise religion consistent with the dictates of their conscience. It has never been considered a right possessed by secular, for-profit corporations. Indeed, in the more than 200 years since the First Amendment's ratification, this Court has never held that secular, for-profit corporations may assert rights under the Free Exercise Clause.


History shows that the First Amendment's explicit protection for “the free exercise” of religion, was intended to protect a basic right of human dignity and conscience, one of the “characteristic rights of freemen,” as George Washington put it. From the Founding until today, the Constitution's protection of religious liberty has been seen as a personal right, inextricably linked to the human capacity to express devotion to a god and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional tradition for the obvious reason that a business corporation lacks the basic human capacities -- reason, dignity, and conscience -- at the core of religious belief and thus the free exercise right.

To be sure, the owners of the corporate employers have their own personal free exercise rights, but those rights are not implicated by the contraception coverage requirement because federal law does not require the individuals who own a company to personally provide health care coverage or to satisfy any other legal obligation of the corporation. The law places requirements only on the corporate entities. [Brief of Constitutional Accountability Center in Support of the Government, 1/28/14]

Corporate Law Professors: Exemption Requested By Hobby Lobby “Is Fundamentally At Odds With The Entire Concept Of Incorporation.” A group of 44 corporate and criminal law professors filed an amicus brief in this case arguing that the point of incorporation is to create a legal entity separate from the individuals who own the company, but by trying to create a new religious exception, Hobby Lobby is trying to “have it both ways”:   

One of the most compelling reasons for a small business to incorporate is so that its shareholders can acquire the protection of the corporate veil. By incorporating a business, the founders and investors do not put their personal assets at risk. Absent significant misconduct and fraud, a shareholder in a corporation cannot lose any more than her original investment. If the corporation cannot pay its bills, the creditors -- not the shareholders -- bear the loss[.]


In the present cases, Hobby Lobby and Conestoga argue that they should be exempt from federal law because of the religious values of their controlling shareholders, while seeking to maintain the benefits of corporate separateness for all other purposes. These corporations have benefitted from their separateness in countless ways, and their shareholders have been insulated from actual and potential corporate liabilities since inception. Yet now they ask this Court to disregard that separateness in connection with a government regulation applicable solely to the corporate entity.

Hobby Lobby and Contestega want to argue, in effect, that the corporate veil is only a one-way street: its shareholders can get protection from tort or contract liability by standing behind the veil, but the coirporation can ask a court to disregard the corporate veil on this occasion.

Hobby Lobby and Conestoga cannot have it both ways. [Amicus Curiae Brief of Corporate and Criminal Law Professors in Support of Petitioners, 1/28/14]

Providing A Religious Exemption For The Corporate Plaintiffs Ignores The Interests Of Women, Children, And Families

Guttmacher Institute: The ACA's Guarantee Of Contraception Coverage Furthers “Women's Educational And Career Goals And Contributes To The Economic Stability Of Women And Their Families.” As explained by the Guttmacher Institute, a leading women's health organization, low-cost or no-cost access to effective contraception “reduc[es] the need for and incidence of abortion” and improves “the economic stability of women and their families,” a compelling interest of “enormous” societal benefit:

[T]he guarantee of coverage serves compelling societal and individual interests. Those who challenge these requirements suggest that because most women are already using contraception, the guarantee cannot be all that important. That assertion is fundamentally wrong. It fails to recognize the vastly different forms of contraception, the substantial degree to which cost determines which contraceptive methods are actually used, the health and social factors that affect a woman's method choice, and the resulting consequences for women's health, family well-being, and risk of unintended pregnancy and abortion.


Cost is a major factor in determining which contraceptives women choose. Almost one-third of American women report that they would change their contraceptive method if cost were not an issue. Initiating use of an implant or IUD can cost a month's salary for a woman working full time at minimum wage.


[A]ccess to the range of contraceptive methods without cost sharing can dramatically reduce the rate of unintended pregnancy, with profound consequences for women and society. Effective family planning facilitates women's educational and career goals and contributes to the economic stability of women and their families. ... Finally, reducing the rate of unintended pregnancy is by far the most widely accepted and effective means of reducing the need for and incidence of abortion. [Brief of the Guttmacher Institute and Professor Sara Rosenbaum in Support of the Government, 1/28/14]

National Women's Law Center: Following The Institute Of Medicine's Recommendation To Cover Contraception Without Cost-Sharing “Promot[es] Gender Equality.” As argued in the amicus brief filed by the National Women's Law Center, national advocates for improved educational and economic opportunities for women, the contraception mandate is a major step in bringing an end to gender discrimination:  

[B]y addressing gender gaps in health insurance and remedying the sex disparities inherent in failing to provide health insurance coverage for contraception and related services, the contraception regulations advance the compelling governmental interest in ending gender discrimination and promoting gender equality. Indeed, in passing the ACA, Congress recognized that excluding coverage of women's preventive health services, including contraception, constituted discrimination against women. Providing contraceptive coverage without cost-sharing corrects gender gaps in the provision of health care by ensuring that women, like men, can meet their basic preventive health care needs. Before the ACA went into effect, women disproportionately bore the costs of reproductive health care, and these high costs negatively affected women's health and well-being, as women often lacked access to or forewent necessary health care to keep costs down.

The contraception regulations address this disparity and advance equal opportunity in other aspects of women's lives, thus improving women's social and economic outcomes more generally.


Employers that exclude women's preventive health services from their health insurance plans while covering men's preventive services discriminate against women. Such exclusion means that women are denied the comprehensive preventive health coverage provided to men. Moreover, when effective contraception is not used, and unintended pregnancy results, it is women who incur the attendant physical burdens and medical risks of pregnancy, women who disproportionately bear the health care costs of pregnancy and childbirth, and women who often face barriers to employment and educational opportunities as a result of pregnancy. [Brief for the National Women's Law Center in Support of the Government, 1/28/14]

American College Of Obstetricians And Gynecologists: “Employers Should Not Be Allowed to Interfere In The Provider-Patient Relationship” By Refusing To Provide Contraceptive Coverage. The American College of Obstetricians and Gynecologists filed a brief that notes that allowing Hobby Lobby to exempt itself from the contraception mandate would “undermine the very nature of the patient-provider relationship” and could prevent patients from accessing vaccines, or other forms of medical treatment the employer finds morally objectionable:

Employers' refusal to provide insurance coverage for contraceptives would increase the cost of health care to women. Some women, particularly lower income women, would be unable to access the most medically appropriate method because of the additional expense. As a result, a private, medical decision that should be made by a woman in consultation with her health care provider would be unduly influenced by the employer. Employers should not be allowed to interfere in the provider-patient relationship in this way. Contraceptive access is critical to the health of women and women should not be denied coverage to which they are otherwise entitled by law based on the religious beliefs of their employer-corporation's owners.

Moreover, allowing an employer a religious exemption to the ACA's mandated coverage requirements would have consequences that extend far beyond contraception. Employers who object to any medical treatment, device, or procedure on personal grounds could similarly exclude such services from the coverage they provide -- with potentially disastrous results. Employers could, for example, seek to exclude vaccinations that they deem offensive to their religious beliefs, forcing individuals to pay for objected-to vaccinations out-of-pocket or worse, forgo the medically-recommended vaccinations entirely. The public health implications of allowing a for-profit corporation to assert a religious exemption to the ACA's mandated coverages are self-evident.

In short, health care decisions should be made by patients in consultation with their health care providers based on the best interests of the patient. ... To allow the personal view of a remote party -- the employer of a patient (or the patient's spouse or guardian) -- to play a role in a patient's medical treatment would undermine the very nature of the patient-provider relationship. [Brief of American College of Obstetricians and Gynecologists in Support of the Government, 1/28/14]

This Unprecedented Religious Exemption Would Unneccesarily Place An Unconstitutional Burden On Employees

Religious Scholars: Exempting Hobby Lobby “Would Shift The Cost Of Accommodating Hobby Lobby's Religious Exercise To Employees Who Do Not Share Its Beliefs.” In the amicus brief from law professors with expertise in church-state legal issues, the professors argue that to let these corporations ignore the contraception mandate would unconstitutionally burden employees who do not share their employers' religious beliefs:

The Establishment Clause prohibits the government from shifting the costs of accommodating a religion from those who practice it to those who do not. As this Court has held, “The First Amendment ... gives no one the right to insist that in pursuit of their own interest others must conform their conduct to his own religious necessities.”

The Hobby Lobby respondents and the Conestoga Wood petitioners (collectively “Hobby Lobby”) ask this Court to construe the Religious Freedom Restoration Act (“RFRA”) to allow them a religious exemption from covering certain forms of contraception under the contraception mandate (the “Mandate”) of the Affordable Care Act (“ACA”). The Mandate would otherwise require Hobby Lobby to cover contraception at no additional cost to its employees. Granting the exemption would shift the cost of accommodating Hobby Lobby's religious exercise to employees who do not share its beliefs. Such cost-shifting violates the Establishment Clause.


[T]he Establishment Clause prohibits RFRA's application where -- as here -- a particular exemption would shift the costs of the accommodated religious practice to identifiable and discrete third parties in the for-profit workplace. [Brief for Amici Curiae Church-State Scholars in Support of the Government, 1/28/14]

American Religious Organizations: For A Wide Range Of American Religions, Including Christian Denominations, “Application Of The Contraception Regulations ... Would Not Substantially Burden Religious Exercise.” According to religious organizations including the Anti-Defamation League and Catholics for Choice, the requested religious exemption for these corporate employers would impermissibly disrespect “a pluralistic society with an 'increasingly diverse religious landscape'”:

Plaintiffs' arguments would undermine -- not promote -- religious liberty, by allowing employers to impose their owners' religious beliefs on employees, many of whom will hold different moral and religious views on the use of contraception. This result would be especially unwelcome as the United States and its workforce become more religiously diverse.

Nor is there any good reason to allow this result: application of the contraception regulations to Plaintiffs would not substantially burden religious exercise. First, Plaintiffs are under no obligation to provide their employees with health insurance. If they object to certain types of coverage that must be included in employee health policies, they may stop offering insurance and pay a modest tax to the government instead; this tax is likely to be much cheaper than the cost of buying health insurance. Plaintiffs could pass along the savings to their employees in the form of higher salary, and Plaintiffs' employees would be eligible to obtain health insurance -- including coverage for contraception -- on the public exchanges, often with government subsidies. What Plaintiffs may not do is hold their employees hostage: refusing to include coverage for contraception, but also blocking their employees from obtaining comprehensive, subsidized insurance elsewhere.

Second, even if Plaintiffs wish to continue offering insurance to their employees as part of their compensation, the contraception regulations do not substantially burden religious exercise. For several reasons, any connection between Plaintiffs and contraception is incidental and attenuated - and thus fails to produce a burden that is “substantial” as a matter of law. [Brief of Religious Organizations Supporting the Government, 1/28/14]

This Case Has Dangerous Implications For Persons Of Color And LGBT People Who Could Face Increased Discrimination If Secular Corporations Are Considered Religious

Lambda Legal: Hobby Lobby's Requested Exemption Would Set The Stage For “Denials of Equal Compensation, Health Care Access, And Other Equitable Treatment For LGBT People.” As Lambda Legal pointed out in its amicus brief, allowing religious employers to pick and choose which laws they want to follow based on their religious faith could “worsen circumstances” for LGBT employees and those living with HIV -- groups that already face significant discrimination:

The exemption the Companies seek here would mark a sea change -- not only in allowing business owners' religious views about family planning to burden decisions employees are entitled to make for themselves, but also in opening the door to similar denials of equal compensation, health care access, and other equitable treatment for LGBT people, persons with HIV, and anyone else whose family life or health need diverges from their employers' religious convictions. As this Court has recognized, our federal laws and traditions have “afford[ed] constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” The Court's explanation of the “respect the Constitution demands for the autonomy of the person in making these choices,” spotlights that the “person” whose autonomy is to be protected is the person herself -- not the owner of the for-profit company that employs her.


The Companies' proposed elevation of religious rights to the detriment of others' needs would, in addition to its adverse effects for women's health access and equality, worsen circumstances for LGBT people and people living with HIV that already are challenging. Responding to the request of the Department of Health & Human Services, Amicus Lambda Legal provided examples based on its litigation and the results of the first national survey to examine barriers to care confronting LGBT people and those with HIV. The survey results were shocking. Of the nearly 5,000 respondents, more than half reported that they had experienced at least one of the following types of discrimination at the hands of health care providers:

  • Refusals to touch them or use of excessive precautions;
  • Harsh or abusive language;
  • Physical roughness or abuse;
  • Blame for their health status. [Brief of Lambda Legal Defense and Education Fund in Support of the Government, 1/28/14]

American Civil Liberties Union: Secular, For-Profit Employers Are “No More Entitled To An Exemption From Anti-Discrimination Laws Governing Commercial Activity.” In its brief to the Court, the ACLU and the NAACP Legal Defense Fund argue that the Court has already rejected religious arguments similar to Hobby Lobby's in the context of race, because there is a “vital state interest in ending discrimination”:

Religion is a powerful force that shapes individual lives and influences community values. Like other belief systems, it has been used at different times and in different places to support change and to oppose it, to promote equality and to justify inequality. Our constitutional structure recognizes the importance of religion by protecting its free exercise, a commitment to religious tolerance and pluralism that was reinforced by Congress when it enacted RFRA. Public debate can be and often is enhanced by those whose participation in that debate is informed by their faith. But once that debate is resolved through the democratic process, those who disagree with that resolution on religious grounds are no more entitled to an exemption from anti-discrimination laws governing commercial activity of the sort involved here than those who dissent on other ideological grounds. That is because the elimination of discrimination -- in the marketplace and outside the realm of constitutionally protected associations, religious or otherwise -- has long been recognized as a state interest of the highest order.


Slavery was once defended on religious grounds. So were Jim Crow laws. Even the courts embraced religion to justify continued segregation. ... Congress and the courts faced calls for exemptions to enable those objecting for reasons of faith to avoid compliance with evolving standards in employment, education, marriage recognition, and public accommodation. The courts rejected these claims, recognizing the vital state interest in ending discrimination in these public arenas and embracing a vision of equality that did not sanction piecemeal exemptions.

The story of women's emerging equality follows a similar pattern. ... Religious beliefs were invoked to justify restrictions on women's roles, including in suffrage, employment, and access to birth control, and later inspired legislation purportedly to “protect” women, including their reproductive capacities. ... Again, as with race, Congress and the courts held firm to the vision embodied in newly passed anti-discrimination measures. [Brief of the ACLU and the NAACP Legal Defense and Educational Fund in Support of the Government, 1/28/14]

See more on the corporate religion cases and right-wing media herehereherehereherehere, and here.