Challenges to Contraceptive Mandate of Affordable Care Act

January 16, 2014

birth-control2013 saw widespread and diverse opposition to the implementation of the Affordable Care Act (ACA). Challenges ranged from complaints regarding the development and launch of the federal government’s health insurance marketplace, healthcare.gov, to allegations that substantive portions of the Act violated the constitutional rights of various parties.

In this post, we will examine some of the cases from 2013 that alleged that the Act’s contraceptive coverage mandate violated the First Amendment right to freedom of religion of various employers who were religiously opposed to the use of contraception that the Act mandated that they provide health insurance coverage for their employees.

First, in Hobby Lobby v. Sebelius, 723 F.3d 1114, a privately held, for-profit secular corporation brought action alleging that the preventive services coverage mandate for employers violated constitutional and statutory protections of religious freedom by forcing them to provide health insurance coverage for abortion-inducing drugs and devices, as well as related education and counseling. The Court of Appeals for the Tenth Circuit determined that the corporation established a substantial likelihood of success on the merits on its claim and determined that the mandate to provide potentially life-terminating drugs and devices in employee insurance plans placed a substantial burden on the religious freedoms of the corporation. The Supreme Court has granted certiorari to consider the case.

Conversely, in Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377, a for-profit, secular corporation brought action alleging that women’s preventive healthcare regulations implemented in connection with the Act violated the constitutional protections of religious freedom. The Court of Appeals for the Third Circuit held that a for-profit, secular corporation could not assert a claim under the Free Exercise Clause of the First Amendment, determining that, although corporations had free speech rights, corporation could not exercise inherently “human” right that took shape within minds and hearts of individuals. The Supreme Court has granted certiorari to consider this case.

Other cases that ruled in favor of the Government included Catholic Diocese of Nashville v. Sebelius, No. 3:13–cv–1303 (M.D.Tenn. Dec. 26, 2013), and University of Notre Dame v. Sebelius, No. 13–cv–01276 (N.D.Ind. Dec. 20. 2013).

Last, but not least, at 2013’s 11th hour, on December 31st, Justice Sotomayor entered an order in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, 2013 WL 6869391, that temporarily enjoined the implementation of the mandate for certain faith-based organizations.

2013 saw many challenges to this provision of the Affordable Care Act without much being definitively resolved. This issue will surely continue to dominate dockets and headlines as we progress through 2014 and beyond.