By Arielle P. Schwartz, Holley Law Fellow, National Gay and Lesbian Task Force
If you thought the slippery slope surrounding the Arizona “Free Religion” bill was toxic to the LGBT community, the Judicial branch is now serving-up seconds, this time framed as the latest front line in the war on women.
The Supreme Court of the United States will hear oral arguments on March 25, 2014 to decide whether business owners are allowed to deny employees insurance coverage for needed medical procedures and treatments based solely on their personal beliefs.
While the specific issue before the Court is about access to contraceptive care for women, this case carries with it a serious potential to have a sweeping domino effect on the LGBT community.
An adverse ruling could result in businesses being allowed to discriminate on the basis of their personal religious beliefs in a variety of areas, including health insurance access to things like birth control, emergency contraception, family planning, vaccines, surgeries, blood transfusions, mental health care, HIV/AIDS treatment, coverage of spouses and children and a whole host of other things.
In hearing Sebelius v. Hobby Lobby Stores, Inc., the Court will decide whether the Religious Freedom Restoration Act of 1993 (RFRA) allows private for-profit corporations to deny its employees the health coverage of contraceptives, to which employees are otherwise entitled by the contraceptive-coverage mandate of the Affordable Care Act, based on the religious objections of the corporation’s owners.
How did corporations that sell arts and crafts supplies, books, doors, and cabinetry, make their way to the Supreme Court of the United States? Hobby Lobby challenged the essential health benefits mandate for employer-sponsored health insurance coverage found in the Affordable Care Act—the requirement that all businesses offer a basic health insurance package that includes the absolute minimum elements of a simple health plan (including contraceptive care) to the Supreme Court of the United States. Hobby Lobby feels (can a corporation feel?) that their religious beliefs would be violated by being required to provide basic health benefits to their employees.
The irony in all of this is that 28 states already required insurance companies who cover prescription drugs to provide coverage of the full range of FDA approved contraceptive drugs and devices. Before Obamacare brought attention to the fact that women should have access to basic health services, Hobby Lobby stores were already offering their employees coverage in those states before the mandate took effect.
So what exactly are both sides arguing? Hobby Lobby (the 2.28 billion dollar corporation) argues that for-profit corporations, not just individuals and religiously affiliated nonprofits, have religious beliefs that should be protected under RFRA.
Secretary of Health and Human Services Kathleen Sebelius and the federal government responded with the following arguments:
- Hobby Lobby will fail to state a claim under RFRA because RFRA does not grant free-exercise rights to for-profit corporations (ie. corporations are not people or religious entities).
- The owners of Hobby Lobby’s exercise of religion is not burdened by regulating their corporation and they are not entitled to relief that exempts them from federal law.
- Their religious exercise is not substantially burdened within the meaning of RFRA.
- Their claims would fail even if the contraceptive mandate provision of the Affordable Care Act were subject to RFRA’s compelling interest test.
- The contraceptive mandate provision advances compelling government interests by:
- Protecting the rights of corporate employees in a comprehensive insurance system
- Ensuring public health
- Providing equal access for women to healthcare services
Essentially, what this boils down to is whether the Court will grant corporations the right to excuse themselves from any law because of a religious exemption claim and if so, what is the standard that will set the precedent?
The Task Force is participating in a massive rally outside the Supreme Court on Tuesday, March 25, 2014 to ensure that our voice is heard in this significant decision and we are recruiting volunteers. If you (or someone that you know) are interested in being a marshal or in helping with set up and other early morning activities, please sign up. The role of volunteers at this rally is crucial. We expect to have an amazing line up of speakers at the People’s Mic event and scores of supporters at the Supreme Court.
The month of March should be a celebratory time—especially for women. March is women’s history month and March 2014 marks the third anniversary of the Affordable Care Act. To learn more about the upcoming cases and how they affect the LGBT community, stay tuned to the Task Force and read the brief written by Lamda Legal.
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