Supreme Court justices divided on HHS mandate argument

Washington D.C., Mar 25, 2014 / 14:49 pm

As the U.S. Supreme Court heard arguments touching on religious freedom and for-profit companies Tuesday, the justices seemed divided over support for corporations or the government.

"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," wrote The Washington Post's Robert Barnes March 25, while adding that "it was difficult to predict a precise outcome from the spirited 90-minute argument."

The federal mandate that for-profit employers pay for their employees' contraception coverage was at issue, with the debate focused on statutory protections for religious freedom.

The court heard oral arguments concerning two legal challenges to the Health and Human Services department's mandate under the Affordable Care Act.

The challenges came from Conestoga Wood Specialties, owned by a Mennonite family, and the Hobby Lobby, whose owners are evangelical Christians. Both business' owners have religious and moral objections to aspects of the mandate, especially its requirement to provide employees with no co-pay coverage of contraceptive drugs they believe can cause abortions.

Former U.S. Solicitor General Paul Clement argued before the court on the companies' behalf, saying that they are protected under the Religious Freedom Restoration Act.

Under the government's logic justifying the mandate, he said, the act would not apply if Congress decided that a for-profit medical provider has to provide an abortion.

"That, with all due respect, cannot be what Congress had in mind when it passed RFRA," Clement said.

The government's position also means that if a kosher market incorporates, "then it has no free exercise claims at all," he argued.

Clement said the HHS department surely knew that religious free exercise objections would result when it compelled employers "to provide something as religiously sensitive as contraception."

He was quickly interrupted by Justice Sotomayor, who asked whether his advocacy of religious exemptions and accommodations would also include blood transfusions, vaccines, or products made of pork.

Justice Elena Kagan also wondered whether an exemption from mandate might invite challenges to laws such as Social Security, sex discrimination bans, and family leave mandates.

"You would see religious objectors coming out of the woodwork," she said.

Clement said the fact that the government made partial exemptions to the mandate is a sign that it recognized it was burdening religious freedom; agreeing, Justice Anthony Kennedy said that "it must have been because the health care coverage was not that important."

Clement suggested the mandate is "about who's going to pay for the government's preferred subsidy" for contraception, which is problematic given that there are "ample alternative ways" to address these burdens.

Under RFRA, the federal government cannot create substantial burdens on religious freedom. However, the scope and intent of that act was a subject of debate among the justices and the attorneys.

Kennedy asked whether the government's reasoning would mean a for-profit corporation "could be forced in principle to pay for abortions."

Chief Justice Roberts commented that the plaintiffs believe the mandate already does just that. Solicitor General Donald Verrilli, who presented the government's case in favor of the mandate, said that federal law does not agree with that assessment.

Verrilli said the government had a "compelling interest" in ensuring that employees receive contraception coverage as a "preventive service." He contended that the existing accommodations for employers with objections comprise a "less restrictive" alternative to the main mandate.

The court also considered the question of whether and how a corporation can exercise religion.

Clement suggested that the plaintiffs have unique features, being "small closely-held corporations that have firmly held religious beliefs," and so differ from larger corporations.

Kennedy appeared to focus on how to balance religious interests of the companies and female employees' legally required access to contraceptives.

Justice Samuel Alito pressed Verrilli to explain what about a for-profit corporation is "inconsistent with the free exercise clause" of the First Amendment. He asked the solicitor general whether he agreed with a lower court's opinion that for-profit corporations "must do nothing but maximize profits" and "cannot have other aims," including religious ones.

Prior to the cases coming to the Supreme Court, circuit courts were divided on the cases' outcomes; the 10th Circuit Court of Appeals had ruled in favor of Hobby Lobby, while the Third Circuit ruled in the government's favor.

SCOTUSblog's Lyle Denniston wrote that the Supreme Court's "ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind. There was very little doubt where the other eight Justices would wind up: split four to four."

The court's decision in the cases is expected to be handed down in June.

Many Catholic and non-Catholic businesses and organizations are challenging the mandate in court; according to the Becket Fund for Religious Liberty, 93 lawsuits representing more than 300 plaintiffs have challenged the mandate.