You couldn’t have picked a better issue for Republicans to bring before the U.S. Supreme Court as the GOP forges ahead on a mission to take back control of the Senate and bolster its majority in the House. For that matter, you couldn’t pick a better issue for Democrats, who are struggling to hang onto ruling status in the Senate and are building a majority coalition for the 2016 presidential campaign.
The Affordable Care Act, or Obamacare as it’s widely known, was back on defense before the high court, which is considering whether to allow for-profit corporations the right to refuse coverage of certain contraceptives in employee health care plans. The main plaintiff in the case, Hobby Lobby, is owned by a family who claim their religion opposes the use of birth control methods they consider “abortifacients” – effectively, early-term abortion-causers since they prevent a fertilized egg from implanting on the uterine wall. The U.S. government argues the law does not allow nonreligious institutions to defy the ACA regulations simply because the personal religious beliefs of the owners are in contradiction to the law.
Oral arguments indicated that a bare majority of justices had some sympathy for the employers, who cited the Religious Freedom Restoration Act as justification for making company policy based on their own spiritual beliefs. But while a contraception carve-out might not cause an uproar, a broad ruling in favor of the plaintiffs could be what City University of New York law school professor Ruthann Robson notes is a legal “slippery slope” – what then, she asks, would stop an employer from refusing to comply with equal pay or nondiscrimination laws because of the owners’ religious beliefs? “It is a chipping away of … the ACA and chopping away at the ability of a secular government to have neutral rules, where you don’t have a religious right to exempt yourself from [them],” Robson says.
At issue are two competing questions – the right of people (or in this case, a corporation headed by religious people) to exercise their faiths without an “undue burden” as opposed to the government’s “compelling interest” in having everyone follow the same laws, says George Washington University law professor Robert Tuttle. And several justices sounded as though they were putting the burden of proof in such cases on the government, he adds. “It sounds like if anybody makes a sincere claim [of religious belief], then really nobody can second-guess them. That means, assuming people are sincere, that everything shifts to the government side of things. That’s really going to interfere with a ‘compelling interest’” of the government to enforce its own laws, he says.
The case has potentially sweeping implications – not just for the ACA, but for other laws people might seek to avert, legally, by asserting religious freedom. And depending on how broadly or narrowly the ruling is decided, it could give a big boost to the idea that corporations are people, of sorts, entitled to free speech. “If you get a really broad ruling that says every rule that is otherwise neutral on its face is subject to [a religious test] … you can imagine a lot of people challenging laws for a whole host of different kinds of reasons,” says Darrell Miller, a professor at Duke University School of Law.
And perhaps as powerfully, the case has implications for the looming showdown in November and in 2016. Republicans have largely given up on attempts to repeal Obamacare, but have been adept at keeping the unpopular law in voters’ minds. The attacks on the law have ranged from charges (which the administration and independent fact-checkers heatedly dispute) that the law has caused millions of people to lose their insurance to ongoing ridicule of the sketchy technological rollout of the federal exchange website. The administration has already made several accommodations to individuals and companies forced to comply with the law. Most recently, amid concerns that the young “invincibles” will not sign up in high enough numbers before the March 31 deadline, the Obama administration extended the deadline for those who claim they have been having trouble signing up from a technical standpoint. And in a separate lower-court case, opponents were challenging the eligibility of low- and moderate-income people who buy insurance on the federal exchanges to receive federal subsidies.
The Supreme Court case gives Republicans a juicy flag-waving argument to make: religious liberty. House Speaker John Boehner, an Ohio Republican, urged the court to create an exception for Hobby Lobby and the like, saying in a statement ahead of the Supreme Court arguments that “religious freedom is not for some people under some circumstances; it is for one and all.”
Democrats, meanwhile, are hoping to stave off a strong GOP showing this fall with a big push for female voters. The tactic worked in 2012, when Democrats (who had, at this same stage in the campaign season, been expected to lose control of the Senate) actually picked up two seats in the chamber – in part because of campaign-killing comments about “legitimate rape” and the idea of children conceived in rape being a “blessing.” The Hobby Lobby case is being presented by Democrats as another example of the so-called “war on women,” with conservatives trying to limit women’s access to birth control. A Democratic Congressional Campaign Committee release accused a slew of House Republican candidates of supporting “the latest in a long line of attacks on women and families, including opposing equal pay for equal work, blocking the Violence Against Women Act and obsessive efforts to defund Planned Parenthood.”
Both parties have statistical ammunition. Obamacare remains unpopular (although it’s less unpopular than it used to be). A Kaiser Family Foundation poll found that 46 percent of Americans oppose the law, with 38 percent supporting it. That’s an eight-point improvement for the president since January, but it’s still a damaging number as Democrats head into a midterm election that typically has lower turnout among the party in power in the White House.
But in the Democrats’ arsenal is polling that shows overwhelming support among women for providing birth control as a health benefit. A recent Hart Research Associates poll found that 68 percent of women ages 18-55 – including 72 percent of independents – believe corporations should not be allowed to opt out of the contraceptive mandate on religious grounds.