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Supreme Court divided as it hears argument on contraceptive coverage Supreme Court divided as it hears argument on contraceptive coverage
(about 1 hour later)
A divided Supreme Court presided over a spirited argument Tuesday about whether business owners’ religious beliefs can trump a requirement in President Obama’s Affordable Care Act that they provide their employees with insurance coverage for all types of contraceptives. A divided Supreme Court seemed inclined to agree Tuesday that the religious beliefs of business owners may trump a requirement in President Obama’s Affordable Care Act that they provide their employees with insurance coverage for all types of contraceptives.
It was difficult to predict from the argument which side would prevail, but the government had the tougher task: to prove that the requirement did not violate a federal statute that gives great protection to the exercise of religion. With both snow and demonstrators gathering on the sidewalk outside, it was difficult to predict a precise outcome from the spirited 90-minute argument.
As is often the case, Justice Anthony M. Kennedy seemed to hold the balance. While in some ways he seemed to favor the government, he was also worried the government’s argument would make it impossible for companies to object to paying for anything, including abortion coverage. But a majority of the justices seemed to agree that the family-owned businesses that objected to the requirement were covered by a federal statute that gives great protection to the exercise of religion. That would mean the government must show the requirement is not a substantial burden on their religious expression, and that there was no less intrusive way to provide contraceptive coverage to female workers.
Solicitor General Donald B. Verrilli Jr. said that was not true, and he repeatedly tried to get the justices to focus not just on the rights of the employers but also on the rights of employees who would be denied the type of contraceptive coverage best for them. As is often the case, Justice Anthony M. Kennedy -- who voted two years ago to find Obamacare unconstitutional -- seemed to hold the balance. Some of his remarks and questions favored the government-. He was concerned about workers being denied coverage to which they were entitled by law because of their employers’ objections.
The three liberal and female justices were the most vocal in questioning Paul Clement, the Washington lawyer representing two companies who object to providing coverage for certain types of contraceptives. But Kennedy also worried that the government’s reasoning would mean there was little employers could object to funding.
Justice Elena Kagan said Clement’s argument could be extended to employers refusing to pay for blood transfusions or vaccines because of religious objections. Under your view, Kennedy told Solicitor General Donald B. Verrilli Jr., a corporation “could be forced in principle to pay for abortions.”
“The entire U.S. code” as it applies to corporations would have to be held to the highest constitutional scrutiny, Kagan said, with a piecemeal approach prevailing on issues Congress thinks important for the whole country. Verrilli said there were laws against that. “But your reasoning would permit that,” Kennedy responded
Verrilli wanted to talk more about Kennedy’s other point, and he tried to get the justices to focus on the rights of the employees, who would be denied the type of contraceptive coverage best for them.
The three liberal and female justices were the most vocal in questioning Paul D. Clement, the Washington lawyer representing two companies who object to providing coverage for emergency contraception and IUDs.
Justices Sonia Sotomayor and Elena Kagan continually pressed Clement on whether his argument could be extended to employers refusing to pay for blood transfusions or vaccines because of religious objections.
“The entire U.S. code” as it applies to corporations would have to be held to the highest constitutional scrutiny, Kagan said.
“So another employer comes in, and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have a religious objection to minimum wage laws’; and then another, family leave; and then another, child labor laws,” Kagan said.
Clement said courts could decide whether such claims had merit.
What is likely to be the signature ruling of the court’s term presents the justices with complicated questions about religious freedom and equality for female workers. It could have long-term implications for what other legal requirements companies could decline because of religious convictions. And it asks a question the court has never confronted: whether the Constitution or the Religious Freedom Restoration Act (RFRA), which protects an individual’s exercise of religion, extends to secular, for-profit corporations and their owners.What is likely to be the signature ruling of the court’s term presents the justices with complicated questions about religious freedom and equality for female workers. It could have long-term implications for what other legal requirements companies could decline because of religious convictions. And it asks a question the court has never confronted: whether the Constitution or the Religious Freedom Restoration Act (RFRA), which protects an individual’s exercise of religion, extends to secular, for-profit corporations and their owners.
The 1993 religious-freedom law prohibits the federal government from imposing a “substantial burden” on a person’s exercise of religion unless there is a “compelling governmental interest” and the measure is the least-restrictive means of achieving the interest.The 1993 religious-freedom law prohibits the federal government from imposing a “substantial burden” on a person’s exercise of religion unless there is a “compelling governmental interest” and the measure is the least-restrictive means of achieving the interest.
The challengers in the cases before the court Tuesday are family-owned businesses that told the court in briefs that the law requires them “to do precisely what their religion forbids them or face draconian consequences — including millions in fines, private lawsuits and government enforcement actions.”The challengers in the cases before the court Tuesday are family-owned businesses that told the court in briefs that the law requires them “to do precisely what their religion forbids them or face draconian consequences — including millions in fines, private lawsuits and government enforcement actions.”
The Obama administration responded in its briefs that the challengers could not point to “a single case in this nation’s history” that exempted a corporation from a neutral law that regulated commercial activities.The Obama administration responded in its briefs that the challengers could not point to “a single case in this nation’s history” that exempted a corporation from a neutral law that regulated commercial activities.
It contends that the RFRA was intended to protect individuals, not corporations, but that even if corporations are covered, there is no substantial burden on the company’s owners. It is the companies, not the owners, who provide the insurance, the government contends, and it is the employees, not the owners, who decide what services they will use.It contends that the RFRA was intended to protect individuals, not corporations, but that even if corporations are covered, there is no substantial burden on the company’s owners. It is the companies, not the owners, who provide the insurance, the government contends, and it is the employees, not the owners, who decide what services they will use.
The court is considering two cases that raise the same issue.The court is considering two cases that raise the same issue.
One was brought by the owners of Hobby Lobby, an arts-and-crafts chain that founder David Green said is run on biblical principles. Hobby Lobby has grown from a single store opened in Oklahoma City in 1972 to more than 500 stores nationally and a workforce of 13,000 people of all faiths. In its brief, the company said it shows its religious foundation by actions such as closing on Sundays and refusing to sell shot glasses.One was brought by the owners of Hobby Lobby, an arts-and-crafts chain that founder David Green said is run on biblical principles. Hobby Lobby has grown from a single store opened in Oklahoma City in 1972 to more than 500 stores nationally and a workforce of 13,000 people of all faiths. In its brief, the company said it shows its religious foundation by actions such as closing on Sundays and refusing to sell shot glasses.
The full U.S. Court of Appeals for the 10th Circuit in Denver found Hobby Lobby’s argument that it was covered by the RFRA convincing.The full U.S. Court of Appeals for the 10th Circuit in Denver found Hobby Lobby’s argument that it was covered by the RFRA convincing.
In a divided opinion, the appeals court relied in part on the Supreme Court’s decision in Citizens United v. Federal Election Commission, which said corporations have political speech rights just as individuals do in spending on elections.In a divided opinion, the appeals court relied in part on the Supreme Court’s decision in Citizens United v. Federal Election Commission, which said corporations have political speech rights just as individuals do in spending on elections.
“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy Tymkovich wrote for the majority.“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy Tymkovich wrote for the majority.
The second case went the other way. A divided panel of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that Conestoga Wood Specialties, a Pennsylvania cabinet-making company owned by a Mennonite family, must comply with the contraceptive mandate.The second case went the other way. A divided panel of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that Conestoga Wood Specialties, a Pennsylvania cabinet-making company owned by a Mennonite family, must comply with the contraceptive mandate.
That decision noted the 10th Circuit’s opinion but said that there was a “total absence of case law” to support the argument that corporations are protected.That decision noted the 10th Circuit’s opinion but said that there was a “total absence of case law” to support the argument that corporations are protected.
“Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” Circuit Judge Robert E. Cowen wrote.“Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” Circuit Judge Robert E. Cowen wrote.
The cases come two years after the Supreme Court’s dramatic 5 to 4 decision that upheld the basic underpinnings of Obama’s signature health-care law, which requires most Americans to obtain health insurance coverage or pay a penalty.The cases come two years after the Supreme Court’s dramatic 5 to 4 decision that upheld the basic underpinnings of Obama’s signature health-care law, which requires most Americans to obtain health insurance coverage or pay a penalty.
Employers of a certain size who offer their employees insurance are required to offer preventive coverage or be fined. The Obama administration has said that among the basic benefits that must be offered is the full range of birth-control options approved by the Food and Drug Administration.Employers of a certain size who offer their employees insurance are required to offer preventive coverage or be fined. The Obama administration has said that among the basic benefits that must be offered is the full range of birth-control options approved by the Food and Drug Administration.
The administration exempted some religious groups from the requirement but has said that for-profit corporations cannot claim a religious exception.The administration exempted some religious groups from the requirement but has said that for-profit corporations cannot claim a religious exception.
Hobby Lobby and Conestoga say they are comfortable offering insurance plans that cover most types of contraceptives, but not ones that they say could endanger a fertilized egg, because they believe life begins at conception.Hobby Lobby and Conestoga say they are comfortable offering insurance plans that cover most types of contraceptives, but not ones that they say could endanger a fertilized egg, because they believe life begins at conception.
Conestoga objects to offering the emergency contraceptives Plan B and Ella. Hobby Lobby adds intrauterine devices (IUDs) to that list.Conestoga objects to offering the emergency contraceptives Plan B and Ella. Hobby Lobby adds intrauterine devices (IUDs) to that list.
The American College of Obstetricians and Gynecologists has objected to the company owners and their supporters saying those contraceptives induce abortions. The American College of Obstetricians and Gynecologists has objected to the company owners’ and their supporters’ claims that those contraceptives induce abortions.
“Contraceptives that prevent fertilization from occurring, or even prevent implantation [of a fertilized egg] are simply not abortifacients regardless of an individual’s personal or religious beliefs or mores,” it said in a brief.“Contraceptives that prevent fertilization from occurring, or even prevent implantation [of a fertilized egg] are simply not abortifacients regardless of an individual’s personal or religious beliefs or mores,” it said in a brief.
The cases are Hobby Lobby Stores vs. Sebelius and Conestoga Wood Specialties v. Sebelius.The cases are Hobby Lobby Stores vs. Sebelius and Conestoga Wood Specialties v. Sebelius.