Wait­ing on Hobby Lobby and the Nine

Modern Healthcare - - THE WEEK AHEAD - —Dar­ius Tahir

Friends and foes of Oba­macare are wait­ing ner­vously this week for the U.S. Supreme Court to hand down its de­ci­sion in a case that could de­ter­mine the ex­tent to which for-profit cor­po­ra­tions can ig­nore govern­ment re­quire­ments on the grounds of re­li­gious free­dom. The case of is one of a se­ries of le­gal at­tacks on the Pa­tient Pro­tec­tion and

Se­be­lius v. Hobby Lobby Af­ford­able Care Act. It in­volves a com­pany whose Chris­tian own­ers ar­gue that the ACA’s man­date on em­ploy­ers to cover con­tra­cep­tion vi­o­lates their re­li­gious rights un­der the 1993 Re­li­gious Free­dom Restora­tion Act.

Based on the re­ac­tions of the five con­ser­va­tive jus­tices dur­ing oral ar­gu­ments in March, the court could rule that cor­po­ra­tions whose own­ers have re­li­gious ob­jec­tions are ex­empt from the ACA’s re­quire­ment to cover em­ploy­ees for Food and Drug Ad­min­is­tra­tion-ap­proved con­tra­cep­tives. That could lead to dif­fer­ent health cov­er­age from one com­pany to an­other, Jus­tice Elena Ka­gan noted. Some ex­perts warn that com­pany own­ers also could refuse to pro­vide cov­er­age for other health­care ser­vices that vi­o­late their re­li­gious be­liefs.

Jonathan Adler, a law pro­fes­sor at Case Western Re­serve Univer­sity who has spear­headed an­other ma­jor le­gal chal­lenge to the ACA, said the high court is likely to ar­tic­u­late prin­ci­ples for what types of re­quire­ments on em­ployer cov­er­age are per­mis­si­ble. Then HHS would have to come up with rules to bring en­force­ment into com­pli­ance. One pos­si­bil­ity, Adler spec­u­lated, is an ac­com­mo­da­tion sim­i­lar to the one the Obama ad­min­is­tra­tion reached with Catholic hos­pi­tals, pro­vid­ing con­tra­cep­tive cov­er­age with­out mak­ing the hos­pi­tals pay for it.

What­ever the re­sult, most ob­servers ex­pect it to be a volatile 5-4 rul­ing.

Ka­gan

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