Contraception coverage: A hobby shop is not a church

A federal appeals court has thrown enforcement of one of the Affordable Care Act’s mandates into confusion by accepting a bizarre argument: that businesses can refuse on religious grounds to include birth control in employee health plans.

The healthcare reform law mandates that if employers provide insurance plans, they must include preventive services, including those specifically for women. Relying on advice from the Institute of Medicine of the National Academy of Sciences, the administration is insisting on coverage of the full range of contraceptive methods approved by the Food and Drug Administration.

But recognizing that some churches have theological objections to contraception, the administration exempted churches and other purely religious employers from the mandate. It also proposed a compromise in which religiously affiliated colleges and hospitals may avoid paying directly for contraception. Instead, employees will receive contraception coverage from an insurance company or, if the employer is self-insured, from a third-party administrator.

There is no exemption, however, for businesses whose owners happen to have religious scruples about birth control — nor should there be. Nevertheless, the U.S. 10th Circuit Court of Appeals in Denver concluded in June that the contraceptive mandate couldn’t be imposed on two businesses whose owners object to the mandate: Hobby Lobby, a chain of hobby and craft stores that operates on “biblical principles,” and Mardel, a chain of Christian bookstores.

The judges suggested that requiring the companies to comply would violate the Religious Freedom Restoration Act. That 1993 law says a “person” can seek to opt out of a law if obeying it would “substantially burden” the exercise of his or her religion. The government can still force compliance if the law serves a compelling interest and is narrowly tailored to achieve its objective. The 10th Circuit said that the mandate couldn’t be a compelling one because some employers, such as very small businesses and religious colleges, were given exemptions.

Last week, the Obama administration asked the Supreme Court to review the 10th Circuit’s decision, noting that two other appeals courts had concluded that profit-making businesses could not claim an exemption from the mandate. Solicitor General Donald Verrilli also argued convincingly that when Congress passed the Religious Freedom Restoration Act it had no intention of obliterating distinctions in the law between “the rights and responsibilities of a corporation and those of its owners.”

The court should take the administration’s advice. A hobby shop is not a church, and a religious exception broad enough to cover profit-making businesses will end up swallowing the rule that employer plans must protect women’s health.