Justices to Review Contraception Coverage in Health Care Law

, The Litigation Daily

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Tony Mauro is Supreme Court correspondent for The National Law Journal, an American Lawyer sibling publication.

The U.S. Supreme Court on Tuesday set the stage for its second major look at the constitutionality of the Affordable Care Act, agreeing to review the requirement that most employers provide health insurance coverage for contraception, including so-called “morning after” methods.

Employers who object to the requirement on religious grounds have filed dozens of suits against it, two of which were granted and consolidated by the court on Tuesday: Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius.

While narrower than the sweeping and unsuccessful attack on the entire statute in last year’s NFIB v. Sebelius, the new dispute is more deeply emotional, pitting strongly held views about religious freedom against equally strong views voiced by women about their reproductive rights.

 “The choice about whether to use birth control should be between a woman and her doctor, and no boss should be able to interfere,” said Cecile Richards of Planned Parenthood Federation of America Tuesday as she announced a nationwide campaign to tell the court how important the issue is.

But David Green, founder of the Hobby Lobby chain of stores and lead plaintiff challenging the requirement, said he was also advocating for a fundamental right. “Business owners should not have to choose between violating their faith and violating the law,” said Green, who asserted “the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution.”

The court’s action raises the strong possibility of a dramatic rematch between Solicitor General Donald Verrilli Jr. and former Solicitor General Paul Clement, who squared off the last time the court examined the sweeping law in NFIB v. Sebelius.

Clement, who was the lead advocate in the 2012 case, was recently brought in by the Becket Fund for Religious Liberty as part of the legal team for Hobby Lobby, an Oklahoma-based chain of arts and crafts supply stores that operates “in a manner consistent with Biblical principles,” according to its mission statement.

Asked if he expected to argue the case, likely to be heard in March, Clement declined to comment. Kyle Duncan, general counsel of the Becket Fund and Hobby Lobby’s lead counsel, said “it is certainly possible” Clement could argue, but it was too early to say.

Like others involved in the two cases, Duncan said Tuesday he was somewhat puzzled by the court’s actions. “It was no surprise,” he said, that the justices would take up the Hobby Lobby case, because both the U.S. government, which lost in the court below, and Hobby Lobby, asked the court to do so. But by also granting the Conestoga case, which raises similar issues, the court introduced some procedural oddities. The government is the appellant in Hobby Lobby and the appellee in Conestoga, so will be filing similar briefs at two different times, as well as a reply brief in the second case. “It’s a little weird,” Duncan said.

A spokesman for President Barack Obama, while not commenting on specifics, welcomed the court’s decision to resolve the issue. “We believe this requirement is lawful and essential to women’s health and are confident the Supreme Court will agree,” a White House release stated.

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