Legal challenges to the contraception mandate of the PPACA focus on two primary questions – what burdens do these programs create and who must bear them?

There are two competing fundamental interests that the PPACA allegedly implicates: reproductive rights and religious freedom. There are evolving arguments for birth control that harken to Roe v. Wade. Essentially, these theories state that by forcing an employee to pay for insurance enrollment through an employer program and the prescription through her salary, she will pay twice for a prescription solely at her employer’s discretion. Such discretion regarding prescriptions will never affect men, as well as women who work for non-sectarian organizations, which invokes an application of a Fourteenth Amendment Equal Protection analysis. For employers who object to the mandate, a First Amendment argument provides a defense to lifestyle choices they disdain.

The advocates for reproductive rights are those organizations invested in women’s rights. The advocates for religious freedom, however, are not solely religious institutions such as churches, because they have already been exempted in the law. Rather, the advocates for religious freedom are religion-based institutions, such as private schools and hospitals, many of which are non-profit. Likewise, private for-profit organizations argue that an owner who established a religion-based corporate structure and policies should not be required to pay for lifestyle choices that violate the underlying policies of the business. This leads to analogies of the 2010 Supreme Court case, Citizens United, where corporations’ First Amendment free speech rights received protection.

The Supreme Court granted certoriari for three cases that encapsulate the major controversies. Hobby Lobby, a large for-profit corporation that operates a chain of craft stores, and Conestoga Wood Specialties, a national for-profit corporation that sells wood and wood-made products wholesale, brought individual complaints based on the corporation argument. Using the religion-based non-profit argument, Wheaton College and Belmont Abbey College jointly argue that they should not have to assent to lifestyle choices that violate the values fundamental to their church. All of these cases were denied an appeal because the actual rules that will affect their operations have yet to be determined by the appropriate government agencies.

In these cases, judges are faced with deciding where the fine line between the First Amendment and the Fourteenth Amendment lies as it relates to women’s’ rights and freedom of religion. This is uncertain territory that the Supreme Court has not addressed with regards to insurance. The cases above rose to the Supreme Court because their discretionary appeals were dismissed for ripeness. The Department of Health and Human Services is still in the process of accepting recommendations for rules regarding the issues and the complainants cannot claim any realized concrete damages.