Supreme Court to Hear Two Contraception Mandate Cases

This morning the Supreme Court agreed to hear two cases in which for-profit corporations are challenging the so-called “contraception mandate” under which employer-provided group health insurance plans are required to fully cover all FDA approved forms of contraception and sterilization.  The two cases accepted for review are Sebelius v. Hobby Lobby Stores, Inc., in which the U.S. Court of Appeals for the Tenth Circuit ruled for the employer, and Conestoga Wood Specialties Corp. v. Sebelius in which the U.S. Court of Appeals for the Third Circuit went the other way. Both appeals principally involve free exercise of religion claims under the Religious Freedom Restoration Act (RFRA).

The Tenth and Third Circuits are not the only appellate courts to have confronted the underlying RFRA claims, including the question whether a corporation may assert free exercise claims under RFRA. The U.S. Court of Appeals for the Sixth Circuit rejected a corporation’s free exercise claim in Autocam Corp. v. Sebelius. The U.S. Court of Appeals for the Seventh Circuit held for the corporate plaintiffs in Korte v. Sebelius and the U.S. Court of Appeals for the D.C. Circuit ruled against the mandate, on behalf of the owners of a closely held corporation but not the corporation itself, in Gilardi v. U.S. Department of Health and Human Services.