The Affordable Care Act (ACA) requires non-grandfathered group health plans to cover certain preventive health services without cost-sharing. For women, this coverage includes well visits, gestational diabetes screening, testing and counseling for certain sexually transmitted diseases, and breastfeeding support, supplies, and counseling. The regulation also requires plans to cover the full range of contraceptive methods approved the Food and Drug Administration. The contraceptive-coverage requirement includes coverage for drugs and devices (e.g., Plan B, Ella, and two intrauterine devices) that many religious employers contend they cannot cover without violating their faith.

As we discussed in last month’s newsletter, “religious employers” (i.e., houses of worship) are fully exempted from the contraceptive requirement. Nonprofit religious organizations that qualify as “eligible organizations (e.g., faith-based schools, nursing homes, and hospitals) may self-certify and route contraceptive payments through their insurer or third-party administrator. The regulations do not exempt or accommodate for-profit employers, regardless of the beliefs held by their owners.

In June 2013, the U.S. Court of Appeals for the Tenth Circuit held that two for-profit companies—Hobby Lobby, Inc. and Mardel, Inc.—and their owners who run their businesses in ways that reflect their religious values are entitled to challenge the women’s contraceptive mandate on religious grounds. Hobby Lobby is a chain of more than 500 arts and craft stores that has approximately 13,000 full-time employees across the country. Mardel is a chain of 35 stores selling books and educational supplies and specializing in Christian materials. The owners of these two for-profit corporations filed suit, contending that the requirement that the Hobby Lobby group health plan cover all forms of FDA-approved contraceptives violates the Religious Freedom Restoration Act of 1993 (RFRA), which provides that the government may not substantially burden a person’s exercise of religion unless that burden is the least restrictive means to further a compelling government interest. Following the Court’s decision, the Departments of Health and Human Services, Labor, and Treasury petitioned the U.S. Supreme Court for a ruling on whether the RFRA allows a for-profit corporation to exclude women’s contraceptive services from its medical plan, based on the religious objections of the owners of the corporations.

The Supreme Court has agreed to hear the case. Arguments are planned for early 2014, with a decision possibly as early as June 2014. The Supreme Court’s ruling will have major implications for women’s rights, the limits of corporate personhood, the “religious expression” of the owners of for-profit companies, and, last but not least, the president’s signature health care reform effort.