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Role of Religion in Health Care Policy

Law professor Ernest Young says Supreme Court cases challenging Obamacare's contraception mandate should provide clarity

A Duke law professor is closely watching a pair of Supreme Court challenges that should decide next year how religious beliefs apply to corporations.

Both cases stem from regulations under the Affordable Care Act (ACA) that require employers to provide health insurance coverage for all contraceptive methods approved by the Food and Drug Administration.

These contraceptives include several that prevent a fertilized egg from implanting in the womb.  Some religious groups who believe that life begins at conception have objected to such methods on the grounds that they kill a living human being, says Duke law professor Ernest Young.The two cases accepted Tuesday by the Supreme Court, Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores, will require justices to decide two distinct and difficult sets of issues, Young says:-- who can assert rights under the Free Exercise Clause and the Religious Freedom Restoration Act; -- does the contraceptive mandate inappropriately burden the employers' religious freedom?On the first issue, Young says, the question is whether religiously-oriented corporations can sue to assert these religious exercise rights. Or can only the individuals who own and operate such a company sue? "Although the furor over the Citizens United case suggests that ascribing constitutional rights to corporations is controversial, it is clear that at least some corporations can assert Free Exercise rights," said Young, who teaches on constitutional law, federal courts and foreign relations law. "After all, some churches are corporations, as are religious universities and hospitals. And religious individuals have been allowed to assert free exercise rights in their capacity as employers, even though they are operating for-profit businesses.""So it is hard to see why these two principles should not be combined to allow for-profit corporations to assert Free Exercise rights," Young said.On the question of whether the contraceptive mandate inappropriately burdens the employers' religious freedom, the government would have to prove that there is no way for the Affordable Care Act to provide contraceptive coverage without imposing that obligation on religious employers, said Young, the Alston & Bird Professor of Law."It is possible, however, that the court will determine that requiring employers to provide coverage does not burden their own religious exercise, since no one is asking the employers themselves to use the contraceptives in question," Young said. "And the court might say that what counts as a 'burden' is different for corporations than for individuals."The Supreme Court announced Wednesday that it would hear the cases that challenge President Obama’s health care law on such religious grounds. Specifically, the court will review split lower court decisions on the health care issue, one that supported the use of religious beliefs by a company and another that rejected using that standard to opt out of the contraception mandate.Some employers have challenged the mandate on the grounds that it violates both their constitutional rights under the First Amendment's Free Exercise Clause and their statutory rights under the Religious Freedom Restoration Act.The Obama administration has permitted exemptions from the mandate for churches, but not for other corporations or individual employers, said Young.These cases mark the second time the Obama administration has come before the Supreme Court over requiring religious dissenters to conform to federal statutory requirements that impinge on religious belief, Young said.In the first, Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, the administration took the "radical position that the Constitution's religion clauses did not provide any special protection for a church's decisions about who could serve as a minister," according to Young.  "The court rejected that position 9-0, finding it 'remarkable' and 'untenable.' It will be interesting to see if the administration again takes an aggressive stance in attempting to limit the protection that the Religious Freedom Restoration Act affords to religious minorities."