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SCOTUS Grants Cert in Contraception Mandate Cases

By Gabriella Khorasanee, JD on December 04, 2013 | Last updated on March 21, 2019

Last week, the Supreme Court granted cert in a group of cases that will likely be some of the most watched of the term -- the contraception mandate cases -- one of them originating in the Third Circuit.

Conestoga Wood Specialties Corp. v. Sebelius

In Conestoga, the Third Circuit held that a private, secular, for-profit corporation could not exercise religion. As such, Conestoga Wood Specialties Corp. could not deny its employees birth control under the Affordable Care Act. The company's request for rehearing en banc was denied, and last week, its cert petition was granted.

Tenth and Sixth Circuit Cases

While there are almost 50 pending lawsuits regarding the Obamacare contraception mandate, according to CNN, several circuits have addressed the issue -- and one was granted cert along with Conestoga: Sebelius v. Hobby Lobby Stores, Inc.

In Hobby Lobby, the Tenth Circuit held that a corporation does have Article II standing, and rights under the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment. It should be noted that a third case, from the Sixth Circuit, Autocam Corp. v. Sebelius, has a cert petition pending. In Autocam, the court held that plaintiffs lacked standing -- personally and as a corporation.

Supreme Court Review

The cases have been consolidated and will be heard together with the issues presented, though differently worded, boil down to the same thing: whether a corporation, or its owners, have free exercise rights that are violated by the contraception mandate in the Affordable Care Act. According to CNN, oral arguments will be set for around March, with an expected ruling by late June.

Likely Result?

We're betting (or is it hoping?) that the Supreme Court will not continue down the dangerous, ill-conceived, and short-sighted path laid down in Citizen's United. Though decided on First Amendment grounds, the jurisprudence related to political speech, and religious expression is quite different.

But before we even get to the First Amendment, we can't just get past the basic premise that people incorporate to protect themselves from individual liability. So, doesn't it then follow, that the corporation is an entity, separate, apart and non-human when it comes to exercising religion? We can't selectively use the corporate veil as a shield -- hopefully the Supreme Court will find the Third Circuit's analysis persuasive.

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