How Citizens United could hurt ObamaCare

The Affordable Care Act is going back to the Supreme Court

Supreme Court
(Image credit: (Kris Connor/Getty Images))

The Supreme Court may be on the verge of pouring a little more salt into ObamaCare's wounds.

The highest court in the land agreed today to hear a pair of cases challenging the Affordable Care Act's requirement that for-profit companies provide contraception coverage for employees.

The first case involves Hobby Lobby, a chain of nearly 6,000 craft stores with 13,000 employees. Hobby Lobby's owners are quite religious, stating on their website that they will "honor the Lord in all we do by operating the company in a manner consistent with biblical principles." The second involves Conestoga Wood Specialties Corp., a Mennonite family–owned company of 950 employees that makes wooden door and cabinet parts.

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The former claims it could suffer as much as $475 million in penalties if it doesn't provide the full coverage of contraception, and the latter $35 million.

Though Obama's health-care law survived mostly intact after its most recent encounter with the Supreme Court in the summer of 2012, it's no guarantee that it will remain unscathed after this next bout — especially since the court has decided similar key issues in favor of corporations in the past.

One of the biggest question at play: Do corporations deserve the same First Amendment protections to religious freedom as individuals? The answer will ultimately determine whether or not private companies can refuse to provide contraception coverage.

If that issue sounds familiar, it's because you have seen this play out before with Citizens United v. Federal Election Commission. In that landmark 2010 case, SCOTUS not only affirmed that corporations have a First Amendment right to freedom of speech, but also ruled that spending money equals speech. The decision allowed corporations to use their treasuries to spend as much as they wanted on campaigns, and led to the proliferation of the big-money super PACs that now litter the electoral landscape.

Based on Citizens United, it would make some sense for the Supreme Court to grant corporations religious protections as well. In fact, Hobby Lobby won its case before the U.S. 10th Circuit Court of Appeals in Denver for precisely that reason. "We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious express," Judge Timothy M. Tymkovich wrote for the majority.

Also helping their case is the 1993 Religious Freedom Restoration Act, a law bolstering religious freedom that was, in an ironic twist, heavily backed by Democrats. It was a response to Justice Antonin Scalia's opinion in Oregon v. Smith that "an individual's religious beliefs [cannot] excuse him from compliance with an otherwise valid law," a ruling against a Native American tribe that smoked banned substances as part of a religious ritual. History is a kick in the pants.

(Whether Scalia, a fierce ObamaCare critic, will reverse himself is another question altogether.)

However, it's far from a slam dunk for private corporations. While Hobby Lobby won its case, Conestoga lost at the appellate level on the grounds that "for-profit secular corporations cannot engage in religious exercise."

And U.S. Solicitor General Donald Verrilli stressed in court papers that prior to Oregon v. Smith, "no case held — or even suggested — that a for-profit corporation could obtain exemptions from corporate regulation on the basis of religion."

The Supreme Court says it will issue a decision before its term expires in July, setting up for another summer of fuming over ObamaCare.

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