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Supreme court justices weigh religion argument in contraception case Supreme court justices weigh religion argument in contraception case
(about 2 hours later)
The supreme court heard arguments Tuesday that the Hobby Lobby challenge to President Barack Obama's Affordable Care Act (ACA) could open the floodgates for companies seeking religious exemptions from other laws as the conservative-dominated bench leaned narrowly toward allowing Christian employers to avoid paying for certain birth control methods. The Obama administration’s lawyer warned in arguments before the supreme court on Tuesday that the Hobby Lobby challenge to a provision of the Affordable Care Act (ACA) could open the floodgates for companies seeking religious exemptions from other regulations, after the court's conservative justices appeared to be leaning narrowly toward allowing Christian employers to avoid paying for certain birth control methods that the law requires employer-provided insurance plans to cover.
Oral arguments in the controversial Hobby Lobby case provided no definitive answer as to how the nine judges will eventually rule, but the three traditionally-liberal female justices, and government lawyer Donald Verrilli, all expressed alarm at the prospect that religious exemptions could also eventually extend to vaccination or blood transfusion, or even minimum wage and family leave protections. Oral arguments in the Hobby Lobby case provided no definitive answer as to how the nine judges will eventually rule, but the three traditionally liberal female justices, and government lawyer Donald Verrilli, all warned that such religious exemptions could also eventually extend to vaccination or blood transfusion, or even minimum wage and family leave protections.
“You would see religious objections come out of the woodwork to all of these laws and the courts' hands would be tied,” said Justice Elena Kagan. “You would see religious objectors come out of the woodwork with respect to all of these laws,” said Justice Elena Kagan, who added later, “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.”
The high-profile case was brought by David and Barbara Green, co-owners of the Oklahoma-based Hobby Lobby chain, which includes some 500 arts-and-craft stores. They argue that that intrauterine devices and emergency contraceptives required to be included in employer health insurance plans under the ACA are immoral because they cause the death of fertilised human embryos. The case was brought by David and Barbara Green, co-owners of the Oklahoma-based Hobby Lobby chain, which includes some 600 arts-and-craft stores. They argue that certain intrauterine devices and emergency contraceptives required to be included in employer health insurance plans under the ACA are immoral because they cause the death of fertilised human embryos.
They were joined in the supreme court case by a similar suit brought by Conestoga, a Pennsylvania-based cabinet maker owned by a Mennonite family.They were joined in the supreme court case by a similar suit brought by Conestoga, a Pennsylvania-based cabinet maker owned by a Mennonite family.
Their joint appeal is the second major assault on Obamacare in the supreme court since it upheld the wider principle of forcing people and companies to take out health insurance or face tax penalties.Their joint appeal is the second major assault on Obamacare in the supreme court since it upheld the wider principle of forcing people and companies to take out health insurance or face tax penalties.
Verrilli also warned that the bench was paying insufficient attention to the competing rights of women whose birth control choices would be curtailed by a ruling in favour of the religious rights of Christian-owned companies. After repeated tough questioning about the law's implementation, Verrilli warned that the justices were paying insufficient attention to the competing rights of women whose birth control choices would be curtailed by a ruling in favour of the religious rights of Christian-owned companies.
“If this exemption is granted, it would be the first time that any court anywhere has granted the employer the right to extinguish the right of its employees to a benefit of fundamental importance,” said the solicitor general. “If this exemption were granted, it [would] be the first time … in which this Court or any court has held that an employer may be granted an exemption that extinguishes statutorily-guaranteed benefits of fundamental importance,” said the solicitor general.
But four conservative judges led by chief justice John Roberts appeared in favour of arguments made by Hobby Lobby's owners that their company had a right to avoid paying for contraception coverage under a 1993 religious protections act passed by Congress. But four conservative judges led by chief justice John Roberts appear in favour of arguments made by Hobby Lobby's owners that their company has a right to avoid paying for contraception coverage under a 1993 religious protections act passed by Congress.
David and Barbara Green, who own the chain of 500 arts-and-craft stores, argue that certain intrauterine devices and emergency contraceptive pills are immoral because they cause the death of fertilised human embryos. “This is not about access to the contraception. It’s about who’s going to pay for the government’s preferred subsidy,” said the Greens' lawyer, Paul Clement.
“This is not about access to contraception, it is about who is going to pay for the subsidy,” said their lawyer, Paul Clement.
The fourth traditionally liberal justice, Stephen Breyer, was unusually quiet during the hearing, and repeatedly stressed that his questions should not be seen as a sign of his intention in either direction.The fourth traditionally liberal justice, Stephen Breyer, was unusually quiet during the hearing, and repeatedly stressed that his questions should not be seen as a sign of his intention in either direction.
“I don't think that it matters whether they call themselves individuals or companies,” he said while discussing who qualifies for religious protections. “I don't think it matters whether they call themselves a corporation or whether they call themselves individuals,” he said while discussing a hypothetical parallel of who would qualify for religious protections if new laws against kosher or halal butchery were introduced.
If, as was previously expected, Breyer still eventually sides with Justices Ruth Bader Ginsburg, Sonia Sotomayor and Kagan in rejecting Hobby Lobby's argument, this would probably leave the deciding vote with justice Anthony Kennedy who raised questions appearing to favour both sides. “Take five Jewish or Muslim butchers and what you're saying to them is if they choose to work under the corporate form ... you have to give up on [protections] that you'd otherwise have,” said Breyer.
“What about the rights of employees?” he asked at one point, siding with the government, before going on to express concern at the notion that companies would lose their right to appeal future restrictions over issues such as kosher butchery practices. If, as was expected before the hearing, Breyer still eventually sides with justices Ruth Bader Ginsburg, Sonia Sotomayor and Kagan in rejecting Hobby Lobby's argument, the deciding vote would probably rest with justice Anthony Kennedy.
Kennedy raised questions appearing to favour both sides, but has typically voted with other conservatives on the bench in the past.
“The employee may not agree with these religious beliefs of the employer. Does the [employer’s] religious beliefs just trump [the employee’s]?” Kennedy asked at one point, siding with the administration, before going on to express concern at the notion that for-profit companies wouldn’t have the right to sue “to vindicate the religious rights of their shareholders and owners” under the government’s theory of the case.
“Under your view, a [for] profit corporation could be forced – in principle, there are some statutes on the books now which would prevent it, but – could be forced in principle to pay for abortions,” Kennedy told Verrilli.
Kennedy also appeared sympathetic to a compromise idea floated by Roberts and others that would see some religious exemption granted to smaller employers if they explicitly seek it.
Churches and religious non-profits have already been granted blanket exemptions, and if extended further, these allowances would be more practical than the alternative proposed by Hobby Lobby, which would be for the government to pay for contraception.
Roberts suggested the answer to those who worry this would encourage larger companies or a wider challenge to other healthcare and employment provisions was to deal with these cases in the courts if they arise.
“Whether it applies in the other situations is a question that we'll have to await in another case when a large publicly traded corporation comes in and says, we have religious principles, the sort of situation, I don't think, is going to happen,” said the chief justice.
But campaigners remained alarmed at the ramifications of the Hobby Lobby case, which attracted large crowds of protestors on both sides outside the court and almost as much media attention as the original Obamacare supreme court case.