TWO VIEWS
“If Hobby Lobby were to prevail, the consequences would extend far beyond the issue of contraception. We would be entering a new world in which, for the first time, commercial enterprises could successfully claim religious exemptions from laws that govern everyone else.”
Walter Dellinger, former acting U.S. solicitor general, in the New York Times
“(They) believe that human beings deserve protection from the moment of conception, and that providing insurance coverage for items that risk killing an embryo makes them complicit in abortion.”
Attorneys for the owners of Hobby Lobby, in a legal brief
The Supreme Court struggled Tuesday with the question of whether companies have religious rights as it heard arguments in a case challenging President Barack Obama’s health overhaul and its guarantee of birth control in employees’ preventive care plans.
Peppering attorneys with questions in a 90-minute argument, the justices weighed the rights of for-profit companies against those of employees. The discussion ranged from abortion to whether a female worker could be forced to wear an all-covering burka.
With most of the justices apparently divided along partisan lines, the outcome could turn on the views of Justice Anthony Kennedy, often the decisive vote on the divided court. Demonstrators on both sides of the issue chanted outside in an early spring snow as the court heard the challenge brought by the Hobby Lobby craft store chain and nearly 50 other smaller businesses.
Two years ago, the justices upheld the overall health care law in a 5-4 ruling. Tuesday’s case focuses on a section of the law that requires companies providing their workers with health insurance to provide policies that cover preventive services, including contraception, at no extra charge.
The companies, owned by evangelical Christian families, challenging the provision object to covering certain methods of birth control that they say can work after conception, in violation of their religious beliefs.
The companies and their backers argue that a 1993 federal law on religious freedom extends to businesses, just as it does to individuals. The Obama administration contends that a Supreme Court ruling in favor of the businesses would not only deny employees contraceptive coverage, but could undermine laws governing immunizations, Social Security taxes and minimum wages.
Kennedy voiced concerns about the rights of both female employees and the business owners. He wondered what would happen if an employer ordered a woman who works for him to wear a burka, a full-length robe and head covering commonly worn by conservative Islamic women.
Later in the 90-minute argument, however, he seemed troubled about how the government’s argument would apply to abortions. “A profit corporation could be forced in principle to pay for abortions,” Kennedy said. “Your reasoning would permit it.”
The three women justices, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, repeatedly questioned Paul Clement, the former George W. Bush administration solicitor who represented the businesses, about whether blood transfusions, vaccinations and laws against sex discrimination would be subject to the same religious objections if the court ruled for his clients.
“So another employer comes in and says, ‘I have a religious objection to sexual discrimination laws,’” Kagan said. “And then another employer comes in: ‘I have a religious objection to minimum wage laws. … Everything would be piecemeal and nothing would be uniform.”
Clement acknowledged that courts would have to decide on a case-by-case basis, but he said only the kind of family-owned companies he represented would make such claims, not large, multinational corporations. “That’s something that’s not going to happen in the real world,” Clement said.
Roberts at one point suggested that the court could limit its ruling to just such companies.
One key issue before the justices is whether profit-making corporations may assert religious beliefs under the 1993 religious freedom law or the First Amendment provision guaranteeing Americans the right to believe and worship as they choose.
The court, which set no date for a ruling, could skirt that issue by finding that the individuals who own the businesses have the right to object. But the justices still would have to decide whether the birth control requirement impinges on religious freedom, and if so, whether the government makes a persuasive case that the policy is important and has been put in place in the least objectionable way possible.
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Kennedy showed some interest in the argument that the companies could simply decide not to offer any health insurance to their workers and instead pay a tax of $2,000 per employee. That route might allow the court to sidestep some thorny questions in the case.
Clement objected that businesses would find themselves at a competitive disadvantage in a situation where other employers were offering insurance.
But when Kennedy asked Clement to assume that the company would come out the same financially, Clement acknowledged that the government might have a strong case.
Conservative justices pressed Obama Solicitor General Donald Verrilli Jr. over the administration’s argument that for-profit corporations have no claim to religious expression. “If you say they can’t even get their day in court, you’re saying something pretty, pretty strong,” Justice Samuel Alito said.
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