Supreme Court appears split in contraception case, with Kennedy in middle

The nine Supreme Court justices appeared split in a case about whether for-profit businesses must provide certain contraceptives under Obamacare. A question by Justice Anthony Kennedy, the usual swing vote, could signal trouble for the Obama administration. 

Charles Dharapak/AP
Demontrators gather in front of the Supreme Court in Washington Tuesday as the court heard oral argument in two challenges to the Obamacare requirement that businesses provide their female employees with health insurance that includes access to a full range of contraceptives.

A sharply-divided US Supreme Court engaged in an intense debate Tuesday over whether owners of for-profit businesses can be forced by the government to provide their employees with certain contraceptive drugs and devices that offend their religious beliefs.

After 90 minutes of oral argument it was clear the nine-member court was split down the center and that justices on the left and on the right were defending entrenched positions. That often means Justice Anthony Kennedy holds the key to the final decision.

Justice Kennedy asked skeptical questions of both sides, but one interaction with US Solicitor General Donald Verrilli might signal trouble for the Obama administration’s position.

Kennedy asked Mr. Verrilli whether the administration’s position might mean that for-profit corporations could be forced to pay for abortions for their employees regardless of any religious objections of company owners.

“No,” Verrilli said immediately. A federal law prohibits such a government command, he said.

“But your reasoning would permit that,” Kennedy persisted.

Verrilli conceded that if Congress passed such a law, and the high court upheld the administration’s view that for-profit corporations and their owners enjoy no ability to exercise religious rights, the government could order companies to pay for abortions.

Chief Justice John Roberts pounced on the concession. “Isn’t that what we are talking about in terms of their religious beliefs,” he said, referring to the religious business owners whose case is before the high court.

The comments came during the potential landmark case testing whether the Obama administration must offer a religious exemption to business owners who complain that the president’s health care reform law is forcing them to offer their employees certain contraceptives that offend their religious beliefs.

At issue is whether the so-called contraception mandate of the Affordable Care Act violates terms of the Religion Freedom Restoration Act (RFRA).

Under RFRA, government programs that substantially burden someone’s religious beliefs must offer an exemption or prove that the resulting burden is justified by a compelling government interest and that the measure is being carried out through the least restrictive means.

The high court is hearing appeals involving two firms, Hobby Lobby Stores, an Oklahoma-based arts and crafts chain, and Pennsylvania-based kitchen cabinetmaker Conestoga Wood Specialties.

The owners’ objections focus on 4 of 18 contraception methods required under Obamacare to be offered to female employees on a cost-free basis.

The objectionable methods involve two forms of the intrauterine device (IUD) and two brands of the emergency contraceptive called the morning-after pill.

The religious owners believe that life begins at conception and that each of the four objectionable birth control methods can block the development of a fertilized egg into a human embryo. They believe the four methods may cause the destruction of human life and, as such, are a form of abortion.

The company owners do not object to the inclusion of 14 other contraceptive methods in their company-funded health care benefits.

The Obama administration opposes any proposed religious exemption. Solicitor General Verrilli argued that the company’s requested exemption would impose the owner’s religious beliefs on their employees, denying them cost-free access to IUDs and the morning after pill.

As he spoke, scores of demonstrators braved a morning snowstorm on the sidewalk in front of the high court, shouting slogans urging the justices not to rule in a way that might reduce the availability of free contraceptives to women – regardless of any religious objections by those ordered to pay for them.

“We’ve got about 2 million women who rely on the IUD as a method of birth control in this country,” Verrilli told the justices. “I don’t think they think they are engaging in abortion in doing that.”

The solicitor general went on to say that the government recognized that the business owners had sincere religious beliefs about the beginning of human life. He added that the government respected those beliefs.

But Verrilli warned that if the high court required a government exemption or accommodation for for-profit companies like Hobby Lobby and Conestoga Wood, it would open the floodgates for other requested exemptions by corporations from government health care mandates.

Verrilli said once someone makes the decision to enter the commercial sphere and incorporate as a for-profit business, they make the choice to abide by the rules of the commercial sphere. 

Arguing for the business owners, former Solicitor General Paul Clement told the justices that the easiest way to rule against the government in the case would be to examine whether there are less restrictive alternatives available to provide the objectionable contraceptive methods.

“The question is who pays,” Mr. Clement said. “The government paying or a third-party insurer paying is a perfectly good least restrictive alternative.”

Justice Sonia Sotomayor said such an outcome would encourage a proliferation of religious claims by corporations. “That would be essentially the same for vaccines, blood transfusions, non-pork products, the government has to pay for all of the medical needs that an employer thinks or claims it has a religious exemption to,” she asked.

Clement replied that the government already provides that kind of accommodation for religious employers.  

“The most obvious least restrictive alternative is for the government to pay for their favorite contraception methods themselves,” he said.   

The cases are Sebelius v. Hobby Lobby (13-354) and Conestoga Wood Specialties v. Sebelius (13-356).

A decision is expected by late June.

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