ACA contraception coverage cases have far-reaching implications, IU law professors say

Nov. 26, 2013


BLOOMINGTON, Ind. -- The U.S. Supreme Court agreed today to hear two cases involving the constitutionality of the contraception coverage guarantee provisions of the Affordable Care Act. According to Indiana University Maurer School of Law experts, these cases may have far-reaching implications, including beyond the act known as Obamacare.

In Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius, the court will decide whether the First Amendment to the U.S. Constitution or the Religious Freedom Restoration Act of 1993 allow for a for-profit corporation to deny its employees health care coverage for contraceptives based on the owners’ religious opposition to birth control. The Affordable Care Act contains an exemption for some religious organizations, but not for for-profit corporations.

“There’s a dramatic split among the U.S. circuit courts regarding the contraceptive coverage provisions, represented by these two cases,” said Dawn Johnsen, the Walter W. Foskett Professor of Law at the Maurer School of Law. “The Supreme Court has to resolve this split. I would expect that the court will be closely divided, and it’s very difficult to predict precisely how the justices will rule.”

The court will hear the cases in the spring.

“We have a great and vital tradition in our country of protecting religious liberty and freedom of conscience," Johnsen said. "But a for-profit corporation and its owners do not have a religious exercise right -- under either the Constitution or RFRA -- to deny women access to reproductive health care coverage to which they are entitled under the comprehensive federal health care law.”

Daniel O. Conkle, the Robert H. McKinney Professor of Law at the Maurer School, agrees these are important cases.

“Nearly three dozen lawsuits have been filed by various businesses whose owners challenge the contraception mandate on religious grounds,” he said. “These cases raise fundamental questions about the scope of religious liberty, including the right of religious objectors to special legal accommodation, even in the commercial sphere.”

Johnsen is an expert on constitutional law, the First Amendment and reproductive rights. She served as acting assistant attorney general in the U.S. Department of Justice Office of Legal Counsel in the Clinton administration. She is available to comment on these cases and can be reached at or 812-855-3942.

Conkle is an expert on constitutional law, the First Amendment, and law and religion. He also is an adjunct professor at IU Bloomington’s Department of Religious Studies in the College of Arts and Sciences. He is available to comment on these cases and can be reached at or 812-855-4331.