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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 7 hours later)
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. A divided Supreme Court seemed inclined to agree Tuesday that the religious objections of business owners may protect them from a requirement in President Obama’s Affordable Care Act that health insurance plans cover all types of contraceptives.
With both snow and demonstrators gathering on the sidewalk outside, it was difficult to predict a precise outcome from the spirited 90-minute argument. With both spring snow and demonstrators gathering on the sidewalk outside, the justices spent a spirited 90 minutes debating religious conviction, equal treatment for female workers and whether the court would be opening the door for religious challenges to all sorts of government regulation.
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. It is difficult to predict a precise outcome based on the justices’ wide-ranging questions and statements. But a majority did seem to come together on the threshold question of whether a corporation can even hold religious views.
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 conservative wing of the court seemed to agree that the challengers in the two cases — closely held corporations owned by families whose religious beliefs the government does not question — could be covered by a federal law that provides great protection for the exercise of religion.
But Kennedy also worried that the government’s reasoning would mean there was little employers could object to funding. So for the contraceptive requirement to apply to the companies, the government would have to show that it has a compelling interest in enforcing the requirement, that this does not impose a substantial burden on religious exercise, and that there was no less intrusive way to provide coverage to female workers.
Under your view, Kennedy told Solicitor General Donald B. Verrilli Jr., a corporation “could be forced in principle to pay for abortions.” As is often the case, Justice Anthony M. Kennedy — who voted two years ago to find Obama’s health-care law unconstitutional — seemed to hold the deciding vote.
Verrilli said there were laws against that. “But your reasoning would permit that,” Kennedy responded Some of his remarks and questions favored the government. He was concerned, for instance, about workers being denied coverage to which they were entitled by law because of their employers’ objections.
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. But Kennedy may have signaled a deeper concern when he raised the worry that the government’s reasoning would mean there was little that employers could object to funding. Kennedy told Solicitor General Donald B. Verrilli Jr. that under Verrilli’s view, a corporation “could be forced in principle to pay for abortions.”
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. Verrilli said there are laws against that.
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. “But your reasoning would permit that,” Kennedy responded.
Verrilli wanted to talk more about Kennedy’s other point and tried to get the justices to focus on the rights of the employees, who would be denied the best type of contraceptive coverage for them.
The three liberal and female justices were skeptical and aggressive questioners of Paul D. Clement, the Washington lawyer representing two companies that object to providing coverage for emergency contraception and intrauterine devices (IUDs).
Justices Sonia Sotomayor and Elena Kagan continually pressed Clement on whether his argument could be extended to employers that decline 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.“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. “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. Clement said that there is no reason to believe that would happen, and that 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. The arguments by Verrilli and Clement were something of a rematch — the two were the lawyers when the court in 2012 upheld the constitutionality of the Affordable Care Act on a 5 to 4 vote. They also were a reminder of the continuing controversy over Obama’s signature domestic program.
Also on Tuesday, less than a mile away, the U.S. Court of Appeals for the D.C. Circuit heard a challenge to another part of the law.
The consolidated cases before the Supreme Court ask 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 challenges come from two companies.
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. Hobby Lobby is an arts-and-crafts chain that founder David Green said is run on biblical principles. It has grown from a single store, opened in Oklahoma City in 1972, to more than 500 stores nationwide and a workforce of more than 13,000 people of all faiths.
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 other is Conestoga Wood Specialties, a Pennsylvania cabinet-making company owned by a Mennonite family, which employs about 950 people.
The court is considering two cases that raise the same issue. One appeals court ruled in Hobby Lobby’s favor, relying 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. Another appellate court ruled the other way, saying a company such as Conestoga cannot claim to exercise religion.
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.
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.
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.
“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.
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.
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 IUDs to that list.
The American College of Obstetricians and Gynecologists has objected to the company owners’ and their supporters’ claims that those contraceptives induce abortions. Clement faced a barrage of questions. He had barely begun speaking when Sotomayor asked about blood transfusions and vaccinations.
“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. Justice Ruth Bader Ginsburg noted that the Religious Freedom Restoration Act was hardly controversial when it passed in 1993. “It seems strange that there would have been that tremendous uniformity if it means what you said it means . . . to cover profit corporations,” she said.
The cases are Hobby Lobby Stores vs. Sebelius and Conestoga Wood Specialties v. Sebelius. Kagan said, “You would see religious objectors come out of the woodwork” if the court agreed with Clement. “So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform,” she said.
Clement disputed the assertions. “I do think this case is, in a sense, easier than most of the examples that you’ve brought up because here’s one where it’s so religiously sensitive, so fraught with religious controversy, that the [government] itself provides a certain number of exemptions and accommodations,” he said.
Kennedy seemed interested in a point the liberal justices raised: that the companies could pay a $2,000 tax per employee and not offer health insurance at all. Clement said that would put the companies at an economic disadvantage and require them to pay higher wages so the workers could buy their own insurance.
Verrilli got a similar grilling from conservatives. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. noted that the government had made many exceptions to the contraception requirement: for employees of churches, those who work for companies whose plans were “grandfathered in” and for religiously affiliated nonprofit corporations.
Verrilli disputed that. Churches have always been treated differently, he said; the grandfathered plans are diminishing and the government is making sure that employees of the nonprofits receive the coverage in a way that does not require them to pay for it directly.
Justice Stephen G. Breyer wondered whether Clement in his presentation had offered a solution for the family-owned businesses: “The less restrictive way is the government pays for it.”
More troublesome for the government was Kennedy’s remark about abortion. Roberts seemed to sense that, and pressed Verrilli when the solicitor general said there is no law that requires coverage to pay for abortion.
“Isn’t that what we are talking about in terms of their religious beliefs?” Roberts asked. “One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions.”
Verrilli said that the business owners are entitled to their opinions but that neither federal nor state laws recognize the disputed contraceptives as inducing abortion.
“With all due respect, I would say that I think that, you know, we’ve got about 2 million women who rely on the IUD as a method of birth control in this country,” Verrilli said. “I don’t think they think they are engaged in abortion in doing that.”
The court will render a decision in the cases — Hobby Lobby Stores vs. Sebelius and Conestoga Wood Specialties v. Sebelius — during its current term, which ends in late June.