Six questions about the contraception mandate and the Supreme Court
Supreme Court Justice Sonia Sotomayor’s New Year’s Eve order temporarily blocking implementation of the Affordable Care Act’s contraception mandate for certain faith-based nonprofits capped a year of intensifying fighting over the controversial provision. But 2014 promises to be even more crucial in determining the fate of the mandate, which requires most employers who offer health insurance to their workers to provide free contraceptive services for female employees.
To begin with, the Supreme Court is expected to rule this year in two different, but related, cases on the issue of whether for-profit businesses owned by religious people must comply with the birth control mandate. There also are dozens of active lawsuits involving religious nonprofits – including the one that prompted Sotomayor’s action – which the high court also may decide to review.
Here are six key questions about the issues before the Court:
1What is the contraception mandate?
The 2010 Affordable Care Act (ACA) requires coverage for preventative care. In August 2011, the Department of Health and Human Services announced the specific parameters for women’s preventative care, which included contraceptive services. As a result, the regulation requires virtually all employers who offer health insurance to their workers to provide their female employees with free contraception coverage – including many forms of birth control and emergency contraception.
2Why do some people oppose the mandate?
Opponents claim that the mandate severely curtails their religious freedom by forcing them to act against their deeply held beliefs. They include Roman Catholics who follow the church’s teachings against artificial means of birth control, as well as some Protestants and people of other faiths who oppose abortion and believe that using emergency contraception like the morning-after pill is akin to abortion.
3Didn’t the Obama administration change the regulation to address religious groups’ concerns?
Yes. Under the rules, churches and other institutions that directly engage in religious activities are exempted from the mandate, and thus are not required to offer their employees contraception coverage.
Originally, religiously affiliated hospitals, schools and other nonprofits were not exempted from the regulation and would have been required to provide free contraception coverage to their female employees. However, in the summer of 2013, the Obama administration amended this rule to shift the administrative and financial responsibility of providing contraception coverage from the faith-based institutions to their insurance companies. But many religious groups are not satisfied with the amended regulation, arguing that the law still in effect requires religious nonprofits to offer contraception coverage to their workers.
The Pew Research Center most recently surveyed Americans on this topic in February 2012, before the Obama administration amended the rule. We found the public divided; among those who had heard about the issue, 48% said religiously affiliated institutions that object to the use of contraceptives should be given an exception from the rule, while 44% said they should be required to cover contraceptive services like other employers. Since then, attitudes toward the health care law in general and the contraception provision specifically may well have changed.
4What is the case on which Justice Sotomayor acted?
It involved the Little Sisters of the Poor, a group of nuns that operates nursing homes for the underprivileged elderly. Just hours before the mandate was scheduled to take effect on Jan. 1, 2014, Sotomayor granted the nuns a temporary injunction. The justice’s order does not apply to all religiously affiliated nonprofits, but it does cover about 200 other Catholic service-oriented groups that use the same health plan as the Little Sisters, according to the Washington Post.
5Are these the cases that soon will be decided by the Supreme Court?
No. The two cases currently before the high court involve for-profit businesses owned by religious individuals or families who personally oppose the use of artificial contraceptives or emergency contraception for religious reasons. Religiously affiliated nonprofits also have sued the federal government, but because the regulations at issue were not finalized until the middle of 2013, these cases are just now starting to be heard and decided by lower courts. Indeed, in one early decision, a federal district court in New York City ruled that two health care organizations and two schools affiliated with the Roman Catholic Church should not be required to comply with the mandate – even under the administration’s amended rules.
6What’s the main thing the Supreme Court will be deciding in the cases involving for-profit businesses?
One of the key questions the Supreme Court will decide is whether a for-profit business is protected by the religious liberty guarantees provided by the First Amendment to the U.S. Constitution and federal law. In a 2010 high court ruling, Citizens United v. Federal Election Commission, the court ruled (in the context of a case involving campaign contributions) that businesses, labor unions and other associations have free speech rights protected by the First Amendment. If the court decides that businesses also have religious liberty rights, then the justices will move to another question: Does the contraception mandate violate the business owners’ religious liberty rights? How the Supreme Court answers that question also could influence how it might eventually deal with the lawsuits being brought by religiously affiliated nonprofits.
David Masci is a senior researcher focusing on religion at Pew Research Center.