In it, but not of it. TPM DC

Liberals Worry As Supreme Court Takes Up Birth Control Mandate

AP Photo / J. Scott Applewhite

The conservative tilt of the Supreme Court has progressives and proponents of the mandate worried. Four justices voted last year to wipe out Obamacare in its entirety and the swing justice decided to strike down parts of it.

"The president should be very concerned about the Supreme Court ruling in this case. There is a strong likelihood that this court will say the contraception mandate violates religious freedom," said Adam Winkler, a liberal law professor at UCLA. "If the court strikes down the contraception mandate, the implications could be broad. It could give businesses the right to seek exemptions from any number of generally applicable laws, including laws protecting against discrimination on the basis of sexual orientation."

"It is a huge concern for every American, not just progressives," said Caroline Fredrickson, the president of the left-leaning American Constitution Society. "The corporation is understood to be a separate legal entity from the people who own it. It's always been understood as such. If the Court concludes that Hobby Lobby is merely an extension of its owners and has the same religious liberty rights they do, then there is arguably no limit to a for-profit business owner's power to flout any law he or she finds religiously objectionable."

The legal basis for the challenge is a 1993 law called the Religious Freedom Restoration Act. It was passed to minimize the impact of a 1990 Supreme Court ruling that religious beliefs are not sufficient basis for an exemption from the law. RFRA requires laws that burden religious liberty to have a compelling government interest and be narrowly tailored to meet that interest.

Liberal legal advocates say a ruling against the mandate may expand corporate personhood.

"No court, prior to the handful of courts that have accepted the corporate challenges to the ACA's contraception mandate, has ever ruled that a secular, for-profit business is protected by the First Amendment's guarantee of religious free exercise," said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center. "If the Supreme Court were to hold in this case that commercial enterprise could claim a right to the free exercise of religion, it would mark a sea change in free exercise jurisprudence and take the corporate personhood concept we saw expressed in Citizens United to a ridiculous extreme."

"The case is unlikely to be decided on the controversial grounds that corporations have religious rights under the First Amendment," Winkler said. "There's a much greater likelihood that the court will say the corporations are persons under the religious freedom restoration act."

The Obama administration tweaked the birth control requirement after it initially caused an uproar early last year. Religious nonprofits like hospitals and universities may opt out of paying for it and pass the cost on to their insurance provider. Churches are exempt entirely. The final rule took effect for most plans on Oct. 1, 2013.

Ed Whelan, a conservative legal analyst, accused the Obama administration of taking a "radical position" against religious liberty and was hopeful that the justices would overturn the birth control requirement. "Let's hope that the Supreme Court once again repudiates the Obama administration's extreme hostility to religious liberty," he said in an email.

The cases are Hobby Lobby Stores, Inc v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius.