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Kenya Law / Blog / Case Summary: Obama Care: Employers can be exempted from the contraception mandate under the Patient Protection and Affordable Care Act of 2010 based on their religious beliefs.

Obama Care: Employers can be exempted from the contraception mandate under the Patient Protection and Affordable Care Act of 2010 based on their religious beliefs.

Obama Care: Employers can be exempted from the contraception mandate under the Patient Protection and Affordable Care Act of 2010 based on their religious beliefs.

United States Supreme Court.

Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores, Inc.,et al.

Certiorari to the Court of Appeals for the Tenth Circuit.

Before: Roberts C.J, Alito J, Scalia J, Kennedy J ,Thomas J ,Ginsburg J ,Breyer J ,Sotomayor J, Kagan J.

June 30, 2014.

Reported by Linda Awuor  & Diana O. Kerubo.

Brief Facts

The Department of Health and Human Sciences(HHS) promulgated regulations under the Patient Protection and Affordable Care Act of 2010(ACA).The regulations required  specified employers group health plans to furnish preventive care and screenings for women without any cost sharing requirements. The Congress did not specify the types of preventive care to be covered but it authorized the Health Resources and Services Administration a component of HHS to decide.

Nonexempt employers were required to provide coverage for 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have had the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.

Religious employers, such as churches, were exempt from this contraceptive mandate. HHS had also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accom­modation, the insurance issuer had to exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost­sharing requirements on the employer, its insurance plan, or its em­ployee beneficiaries.

Owners of three closely held for-profit corporations( Conestoga Wood Specialties, Hobby Lobby Stores and Mardel) had sincere Christian beliefs that life began at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operated after that point.

Norman and Elizabeth Hahn and their three sons were owners of Conestoga Wood Specialties and David and Barbara Green and their three children  were owners of two family businesses(Hobby Lobby Stores and Mardel sued in separate actions HHS and the federal officials and agencies under the Religious Freedom Restoration Act of 1993(RFRA) and the Free Speech Clause, seeking to enjoin application of the contraceptive mandate insofar as it required them to provide health coverage for the four objectionable contraceptives.

In No. 13–356, the District Court denied the Hahns and their compa­ny-Conestoga Wood Specialties a preliminary injunction. Affirm­ing, the Third Circuit held that a for-profit corporation could not “en­gage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity.

In No. 13–354, the Greens, their children, and their companies—Hobby Lobby Stores and Mardel were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Greens’ businesses were “persons” under RFRA, and that the cor­porations had established a likelihood of success on their RFRA claim because the contraceptive mandate substantially burdened their ex­ercise of religion and HHS had not demonstrated a compelling inter­est in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.


  1. Whether corporations were included within the definition of the word “person” under the Religious Freedom Restoration Act.
  2. Whether the for-profit corporations could engage in religious exercise and thus, claim protection under the Religious Freedom Restoration Act.
  3. Whether the contraceptive mandate substantially burdened the exercise of religion.
  4. Whether the regulations under Affordable Care Act (ACA) furthered a compelling governmental interest and used the least restrictive means to further the interests.

Statute Law-interpretation of statutes-corporations as legal persons-whether corporations were included within the definition of the word “person” under the  Religious Freedom Restoration Act .

Statute Law-interpretation of statutes- scope of the Religious Freedom Restoration Act of 1993-whether the Act applied to the activities of for-profit corporations.

Statute Law-The Religious Freedom Restoration Act of 1993 (RFRA) – exercise of religion- religious beliefs and practices-whether the contraceptive mandate substantially burdened the exercise of religion- Free exercise clause Religious Freedom Restoration Act of 1993.

The Religious Freedom Restoration Act of 1993 (RFRA)

42 U. S. C. §§2000bb–1(a), (b)-Free Exercise of Religion Protected.

In general

  1. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.


  1. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
    1.  is in furtherance of a compelling governmental interest; and
    2.  is the least restrictive means of furthering that compelling governmental interest.

42 U. S. C. §2000cc–5(7)(A).

The Religious Freedom Restoration Act of 1993 (RFRA) as amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)covers “any exercise of religion, whether or not compelled by, or central to, a system of religious be­lief.”

The Dictionary Act,

1 U.S. Code § 1

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;


  1. The Religious Freedom Restoration Act of 1993 (RFRA) was designed to provide very broad protection for religious liberty. By enacting the Act, the Congress went far beyond what the Court had held to be constitutionally required. The Congress provided protection for people like Hahns and Greens by employing a familiar legal fiction. It included corporations within RFRA’s definition of “persons.” The purpose of this fiction was to provide protection for human beings. A corporation was simply a form of organization used by human beings to achieve desired ends. An estab­lished body of law specified the rights and obligations of the people (including shareholders, officers, and employ­ees) who were associated with a corporation in one way or another. When rights, whether constitutional or statutory, were extended to corporations, the purpose was to protect the rights of these people.
  2. ‘Person’ in a legal setting, often referred to artificial entities. The Dictionary Act made that clear. Thus, unless there was something about the RFRA context that indicated otherwise, the Dictionary Act provided a quick, clear and affirmative answer to the question whether the companies involved in these cases would be heard.
  3. No persuasive explanation was offered on the argument that RFRA did not cover the three corporations because they could not exercise religion. The corporate form alone could not explain that because, RFRA indisputably protected nonprofit corporations. This had been previously explained in [Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877], where the Court held that exercise of religion involved not only belief and profession but the performance of, or abstention from physical acts that were engaged in for religious reasons. Further that, business practices compelled or limited by the tenets of a religious doctrine fell comfortably within the understand­ing of the “exercise of religion.” Thus, a law that operated so as to make the practice of religious beliefs more expensive in the context of business activities, imposed  a burden on the exercise of religion [Braunfeld v. Brown, 366 U. S. 599. ]
  4. Any suggestion that for-profit corporations were incapable of exercis­ing religion because their purpose was simply to make money fly in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorized corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles.
  5. The claim that RFRA offered no protection be­cause it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations was flawed. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) amendment would surely dispel any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the pre-Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggested that for-profit corporations could exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored the Court’s pre-Smith decisions in ossified form and re­stricted RFRA claims to plaintiffs who fell within a category of plain­tiffs whose claims the Court had recognized before Smith.
  6.  The Hahns and Greens bore a sincere religious belief that life began at conception. They therefore, objected on religious grounds to providing health insurance that covered methods of birth control that would result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demanded that they engage in conduct that seriously violated their religious beliefs. If they did not yield to this demand, the economic consequences would be severe. If the companies continued to offer group health plans that did not cover the contraceptives at issue, they would be taxed $100 per day for each affected individual. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or$33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums were surely substantial. Before the advent of ACA, they were not legally compelled to provide insurance, but they never­theless did so—in part, no doubt, for conventional business reasons, but also in part because their religious beliefs governed their relations with their employees.
  7. The Hahns and Greens believed that providing the coverage demanded by the HHS regulations was connected to the destruction of an embryo in a way that was sufficient to make it immoral for them to provide the coverage. This belief implicated a difficult and important question of religion and moral philosophy, namely, the circumstances under which it was wrong for a person to perform an act that was innocent in itself but that had the effect of enabling or facilitating the commission of an immoral act by another. However, it was not for the Court to say that the religious beliefs of the plaintiffs were mistaken or unreasonable.
  8. The interest in guaranteeing cost-free access to the four challenged contraceptive methods was a compelling governmental interest, but the Government failed to satisfy RFRA’s least restrictive-means standard. HHS did not show that it lacked other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the ob­jecting parties in these cases. The Government could for instance assume the cost of providing the four contraceptives at issue to any women who were unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty.
  9. HHS did not provide any estimate of the average cost per employee of providing access to the contraceptives, two of which, according to the FDA, were designed primarily for emergency use. Nor did they provide any statistics regarding the number of employees who would be affected because they worked for corporations like Hobby Lobby, Conestoga, and Mardel. HHS also did not inform whether it was unable to provide such statistics. It thus seemed likely that the cost of providing the forms of contracep­tives, if not all FDA-approved contraceptives would be minor when compared with the overall cost of ACA.
  10. The scope of the decision  only covered the contraception mandate and was not to be construed to hold that an insurance coverage had to necessarily fall if it conflicted with an employer’s religious belief .Other coverage requirements such as immunizations  would be supported by different interests, for example, the need to combat the spread of infectious diseases and  would involve different arguments about the least restrictive means of providing them. It also did not provide a shield for employers who cloak illegal discrimination as a religious practice.
  11. HHS analogized the contraceptive mandate to the requirement to pay Social Security taxes which was upheld in Lee [United States v. Lee, 455 U. S. 252 (1982)] despite the religious objection  of an employer. It was untenable to allow individuals seek exemptions from taxes based on religious objections to particular Government expenditures. Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply was no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of govern­ment expenditures funded by tax dollars, allowing tax- payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate was very differ­ent. ACA did not create a large national pool of tax revenue for use in purchasing healthcare coverage. Ra­ther, individual employers like the plaintiffs purchased insurance for their own employees.

As Per Justice Kennedy

  1. In the constitutional tradition, freedom meant that all persons had the right to believe or strive to believe in a divine creator and a divine law. For those who chose that course, free exercise was essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicated more than just freedom of belief. In these cases the plaintiffs deemed it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations. They claimed protection under RFRA, the federal statute discussed in the courts opinion.
  2. The government did not show as required by RFRA that the means used to regulate was the least restrictive way to further its interest. The record,in the view of the court showed that there was an existing, recognized, workable, and already-implemented framework to provide coverage. That framework was one that HHS has itself devised, that the plaintiffs had not criticized with a specific objection. That was less restrictive than the means challenged by the plaintiffs.
  3. The means the Government chose was the imposition of a direct mandate on the employers in these cases.  But in other instances the Government had allowed the same contraception coverage in issue here to be pro­vided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. The accom­modation worked by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wished it. That accommodation equally furthered the Government’s interest but did not impinge on the plaintiffs’ religious beliefs.
  4. The Gov­ernment did not meet its burden of showing that it could not accommodate the plaintiffs’ similar religious objections under the established framework. RFRA was inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other when it would treat both equally by offering both of them the same accommodation.

JUSTICE GINSBURG with whom JUSTICE SOTOMAYOR joined, and with whom JUSTICE BREYER and JUSTICE KAGAN joined in dissenting.

  1. RFRA, in the Courts view demanded accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation would have on third parties who did not share the corporation owners’ religious faith. In these cases, there were thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations .The Congress enacted RFRA to serve a far less radical purpose.
  2. The Congress acted on the understanding when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA).The genesis of this coverage ought to have enlightened the Courts resolution of these cases.
  3. Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga might have asserted was foreclosed in the Smith case where it was held that, when prohibiting the exercise of religion, it was not the object of governmental regulation but merely the inci­dental effect of a generally applicable and otherwise valid provision. Further that, an individual’s religious beliefs did not excuse him from compliance with an otherwise valid law prohibiting conduct that the State was free to regulate. The ACA’s contraceptive cover­age requirement applied generally, it was “otherwise valid.” It trained on women’s well being, not on the exercise of religion, and any effect it had on such exercise was incidental.
  4. Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Cones­toga sought. Accommodations to religious beliefs or obser­vances, as clarified, must not significantly impinge on the interests of third parties. The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who did not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.
  5.  The Court noted that for-profit corporations would sup­port charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. It however forgot that religious organizations existed to serve a community of believers. For-profit corporations do not fit that bill.
  6. If Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they had to demonstrate that the contraceptive coverage requirement “substan­tially burdened their exercise of religion.”  Congress no doubt meant the modifier “substantially” to carry weight. No inquiry was made on whether any burden imposed by the contraceptive coverage requirement was substantial. Instead, the belief held by Hahns and Greens that providing the coverage demanded by the HHS regulations was connected to the destruction of an embryo in a way that was sufficient to make it immoral for them to provide the coverage was rested upon.
  7. The Green and Hahn families’ religious convictions regarding contraception were sincerely held.  But those beliefs, however deeply held, did not suffice to sustain a RFRA claim. RFRA, properly understood, dis­tinguished between factual allegations that plaintiffs’ beliefs were sincere and of a religious nature, which a court had to accept as true, and the legal conclusion that plaintiffs’ religious exercise was substantially burdened,” an inquiry the court had to undertake.
  8. The contraceptive coverage requirement according to the Court, failed to satisfy RFRA’s least restrictive means test. But the Government had shown that there was no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives which they believed caused abortions; and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees received, at no cost to them, the preventive care needed to safeguard their health and wellbeing. A “least restrictive means” could not require employ­ees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers could adhere unreservedly to their religious tenets.
  9. The Lee case recognized that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden was not unconstitutional. It made two key points one could not confine to tax cases. When followers of a particular sect entered into commercial activity as a matter of choice, the limits they accepted on their own con­duct as a matter of conscience and faith were not to be superimposed on statutory schemes which were binding on others in that activity. The statutory scheme of employer-based comprehensive health coverage in­volved in these cases was surely binding on others engaged in the same trade or business as the corporate challengers in Hobby Lobby and Conestoga. It was further, provided in Lee that allowing a religion-based exemption to a commercial employer would operate to impose the employer’s religious faith on the employees.
  10. No doubt the Greens and Hahns and all who shared their beliefs would decline to acquire for themselves the contra­ceptives in question. But that choice would not be imposed on employees who held other beliefs. Working for Hobby Lobby or Conestoga, in other words, ought not  deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.
  11. There was an overriding interest, in keeping the courts out of the business of evaluating the relative mer­its of differing religious claims as in Lee, or the sincerity with which an asserted religious belief was held. Approv­ing some religious claims while deeming others unworthy of accommodation could be perceived as favoring one religion over another, the very risk the Establishment Clause was designed to preclude.                                

The contraceptive mandate, as applied to closely held corporations, violated RFRA.

The judgment of the Tenth Circuit in No. 13–354 was affirmed;

The judgment of the Third Circuit in No. 13–356 was reversed, and that case was remanded for further proceed­ings consistent with the opinion.

Relevance to Kenya.

The use of contraceptives in Kenya has mainly been attributed to the prevention of unwanted pregnancies, prevention of unsafe abortions, family planning and ultimately population control.

Religious and cultural beliefs among other factors such as a partners approval and  the knowledge and access of the various methods of contraception have either influenced or hindered the use of contraceptives in Kenya.

The Government has interest in ensuring access to reproductive services to all (religious or not) within the reproductive age. This includes adolescents.

Article 43 of the Constitution of Kenya provides that every person has the right to the highest attainable standard of health,which includes the right to health care services,including reproductive health care.

Currently tabled for debate is the Reproductive Health Care Bill, 2014.

Section 4 provides that the National and County Governments shall make available contraception and family planning services, including contraceptive options, counseling, information and education.

It further provides for the right to information under Section 5.

Every health care service provider prescribing a contraceptive method shall provide information to the person to whom the prescription is being given as to its advantages and disadvantages and ensure informed consent

Section 33 provides that the Cabinet Secretary for health shall consultation with the Board facilitate the provision adolescent friendly reproductive health services.

Further, in the provision of reproductive health services to adolescents, parental consent is not mandatory. And, despite that provision, nothing will prevent a health care provider from whom reproductive health services are sought by an adolescent, from referring the adolescent to a qualified person for provision of the necessary services.

The Court in the Hobby Lobby case set out that the Government ought to have satisfied the least restrictive means standard as provided under The Religious Freedom Restoration Act of 1993. This meant that there was need to show that it lacked other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.

Jurisprudence set in this case can guide the provision of contraceptives to all persons religious or not, as part of the reproductive health services suggested under the Bill, but ensuring that personal beliefs are not disregarded.Article 32 of the Constitution recognises the right to freedom of conscience,religion,thought,belief and opinion.Sub-article 4 further provides that  a person shall not be compelled to act,or engage in any act that is contrary to the persons belief or religion.

The test set can also guide legislators in reviewing the Bill especially with regards  to the provision of reproductive health services to adolescents I.e whether there is an alternative means to  contraceptives that will at the same time further government interest in combating teenage pregnancies, prevention of unsafe abortions etc.

It can guide in future policy making I.e. to ensure reproductive health services are accessed but at the same time keeping in mind and addressing issues such as religious and cultural beliefs that may inhibit achievement of government objectives.

It is however noteworthy that the scope of the decision only covers the provision of contraception and cannot be construed that an insurance coverage can necessarily fall if it conflicts with an employer’s religious belief. It further recognizes that other coverage requirements such as immunizations to combat the spread of infectious diseases may be supported by different interests.

It also cannot provide a shield for employers who cloak illegal discrimination as a religious practice.

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