SCOTUS decision likely won't repeal contraceptive mandate

Whatever the Supreme Court’s decision in Hobby Lobby’s challenge to the Affordable Care Act’s contraception mandate, it won’t likely have broad implications for all employers, according to Howard Shapiro, partner and head of Proskauer’s ERISA litigation group in New Orleans.

Shapiro spoke with EBN following Tuesday’s oral arguments before the Supreme Court.

Tell us what’s at stake in this case.

At issue in the Hobby Lobby case and the companion case, Conestoga Wood Specialty Corporation, is whether, based on the Religious Freedom Restoration Act, two closely held for-profit employers may assert that because of their religious beliefs, the Religious Freedom Restoration Act prevents them from having to provide certain types of contraception coverages mandated by the Affordable Care Act. This is a challenge based on religious grounds to certain types of birth control.

The Religious Freedom Restoration Act holds that the government shall not substantially burden a person’s right to exercise of religion.

The [lower] courts have accepted the proposition that they’re not contesting the sincerity of the religious beliefs of the owners of these closely held corporations. The courts, both at the district court level and the appellate court level, all accepted the concept that these closely held companies, owned by families, have these deeply held religious beliefs that certain types of contraception are inconsistent with those religious beliefs.

What happened during the oral arguments?

The question is whether this statute [Religious Freedom Restoration Act] can be enforced by for-profit corporations. The circuit court opinions talked a lot about that issue — there’s less discussion of that issue in the oral argument that was held [this week].

[Justices] Kagan, Sotomayor, Ginsberg and Breyer, to a lesser degree, are the primary questioners of the petitioners’ [Hobby Lobby] side. The issue was: Can a for-profit, closely held company exercise religion? Because if it cannot, then it’s not covered by the Religious Freedom Restoration Act. So that’s one of the major issues that’s going to come out of this decision — whether these closely held companies may enforce the Religious Freedom Restoration Act.

What are the implications of this case for plan sponsors?

However the case comes out — let’s assume the petitioners are victorious and that this narrow part of the ACA is struck down under the Religious Freedom Restoration Act — we have to remember that while it is significant that a major law like the ACA is being challenged, the issue here, while a hot button issue and politically a very sensitive issue, may not affect very many people. The decision should be limited to people working for closely held corporations, small family businesses, where the religious issues are of significant import and there just may not be that many businesses similarly situated. You may not see that broad impact from the decision if it goes the way Hobby Lobby and Conestoga would like it to go.

Would a Supreme Court decision in Hobby Lobby’s favor strike down the contraception mandate for all employers, or just those similar to Hobby Lobby?

Just certain employers who can make a successful showing under the Religious Freedom Restoration Act. Not all employers will be able to demonstrate the kind of religious principles that are being demonstrated here.