Both sides want the justices to settle an issue that has divided lower courts. | AP Photos SCOTUS to weigh contraceptive rule

The Supreme Court has agreed to revisit Obamacare, this time to review the requirement that most employers provide contraceptive coverage in their employee health insurance plans.

On Tuesday, the court accepted two cases centered on the issue of business owners’ religious expression.


It’s another test for the embattled health care law, which is already struggling under the weight of a botched website and a political backlash after millions of Americans saw their current insurance plans cancelled for 2014.

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The case could also rekindle the same clash that unfolded during the 2012 presidential campaign, when Republicans attempted to make the contraception rule an important issue. A ruling against the contraception coverage rule wouldn’t knock down the whole health law, but it would give more fuel to its opponents.

This is not Obamacare’s first trip to the high court. In 2012, the court ruled in favor of another controversial piece of the law — the individual mandate, which requires most Americans to have health insurance. Chief John Roberts sided with the liberal wing of the court to uphold the mandate, a surprise move that kept a key piece of the law intact.

The court also ruled at the time that states could opt-out of the Medicaid expansion designed to cover low-income Americans. About half the states did opt out, meaning that in some states poor people can get covered and in others they remain uninsured.

The Affordable Care Act requires most large employers to provide health insurance that includes coverage of certain treatments and medicines, including several forms of contraceptives. Under pressure on the contraception mandate, the White House gave an exemption to certain non-profit religious organizations but not to private employers generally.

Contraceptive coverage proved to be popular with most Americans, especially unmarried women – key supporters of President Barack Obama.

In Sebelius v. Hobby Lobby Stores Inc., the appeals court temporarily lifted the requirement that the craft-store chain provide contraceptive coverage for their workers. The company cited religious reasons.

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A separate lower court ruled against Conestoga Wood Specialties Corp., requiring the Pennsylvania company to follow the contraception rule.

The Obama administration wants the high court to resolve the split in the lower courts and uphold the contraception rule.

The White House released a statement Tuesday calling the requirement for private companies to provide contraceptive coverage “lawful and essential to women’s health.” It pointed to what it called a “commonsense” exception for religious institutions.

“These steps protect both women’s health and religious beliefs, and seek to ensure that women and families—not their bosses or corporate CEOs—can make personal health decisions based on their needs and their budgets,” said White House press secretary Jay Carney in the statement.

On Capitol Hill, Rep. Joe Pitts (R-Pa.), whose district includes Conestoga, immediately voiced support for the justices’ decision. “I am very pleased that the Supreme Court will consider whether Obamacare is violating the religious freedom of employers,” he said. “Conestoga and people of faith across the nation are waiting to see if the court will protect their constitutional right to live out that faith in the marketplace.”

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And Sen. Ted Cruz (R-Texas) also weighed in quickly, welcoming the high court’s review. “Illegal mandate tramples religious freedom, should be struck down,” he tweeted.

The central question in both cases is whether a for-profit, secular corporation can claim constitutional protection from the provision based on religious grounds. The two cases will be combined and given one hour of oral arguments before the justices next spring.

The justices did not announce whether they will hear cases brought by other companies, including Autocam Corp., and Liberty University.

At issue is whether the Religious Freedom Restoration Act of 1993 prohibits the government from requiring a business and its owners to provide contraceptive coverage in employee health plans if the owners object on religious grounds. In ruling in favor of Hobby Lobby, the U.S. Court of Appeals for the 10th Circuit said that since the Supreme Court extended constitutional protections to corporations for political speech in the Citizens United case, religious expression protections should be extended as well.

Hobby Lobby’s owners, David and Barbara Green, say they run their company in accordance with their strongly held Christian beliefs, with all stores closed on Sundays. The Greens say they have no argument against including preventive contraceptive — such as the birth-control pill or diaphragm — in their employee insurance plans and, in fact, have long done so. But they say their beliefs forbid them from providing the morning-after pill as part of those plans; the drug, which could prevent a fertilized egg from implanting in the uterus, is akin to abortion, they say.

If the company fails to comply with the contraceptive mandate, it faces steep fines. Dropping all coverage for employees would also make Hobby Lobby subject to millions of dollars in additional fines a year.

Conestoga is a Mennonite-owned company with similar objections, but its request for an injunction was denied by a lower court.

The cases will decide “who gets to exercise religion — it’s really that simple,” said Kyle Duncan, general counsel of the Becket Fund, which is representing Hobby Lobby. “The idea that the protection of religious liberty is confined to only certain pursuits … from our perspective, that’s disturbing.”

The Justice Department argues that the coverage requirement does not pose a substantial burden on religious liberty but rather advances a “compelling” government interest in promoting preventive health care — to allow for healthier mothers and babies in planned pregnancies. The department also argues that the owners chose to incorporate their business, so they cannot choose corporate protections, such as limited personal liability, on one day and choose personal protections, such as religious freedom, on another.

Supporters of the provision say that an adverse ruling could not just restrict access to contraceptives in employer health plans, it could also allow employers to impose other religious beliefs on employees.

A ruling against the administration on this issue is “in essence saying that these corporations … can impose their religious beliefs on their employees,” said Louise Melling, deputy legal director of the American Civil Liberties Union. She pointed to potential cases in which an employer tries to pay men more than women, based on the theory that men should be heads of households; restrictions on providing mental health care or blood transfusions based on religious beliefs; or prohibitions on providing insurance coverage to same-sex partners of employees.