Expect A Close Ruling As Supreme Court Weighs Contraceptive Coverage

By Michael Doyle

McClatchy Washington Bureau


WASHINGTON — Conservative Supreme Court justices on Tuesday foreshadowed how they might rule on whether certain for-profit corporations could claim religious exemptions from the health care law’s contraceptive mandate.

In the year’s most closely watched case, justices showed sharp divisions along familiar conservative-liberal lines. Another 5-4 decision appears likely in this latest challenge to the Patient Protection and Affordable Care Act.

Unlike in 2012, though, when the court upheld a key plank of the law, Chief Justice John Roberts Jr. sounded firmly in the camp of those challenging the act. While questions may be uncertain guides, several justices specifically cited how they might extend rights under the Religious Freedom Restoration Act to for-profit corporations without opening up the door too broadly.

“You avoid all of the problems with what to do,” Roberts said, “if you say it applies to a closely held corporation.”

Echoing the sentiment, Justice Antonin Scalia added that the religious views of “whoever controls the corporation” could be attributed to the corporation. Questions about the religious views of, say, a publicly traded corporation could be put off until another day, Roberts suggested.

The reasoning, if it attracts three other votes, would help the two companies that are challenging the Affordable Care Act’s requirement that insurance packages include certain contraceptives. It also might set the stage for a searing defeat for the Obama administration, and a landmark decision on corporate rights.

“We’ve never considered a for-profit corporation as exercising religion,” Justice Sonia Sotomayor noted.

The unusually long, 90-minute oral argument Tuesday morning marked the first time the health care law has returned to the high court since Roberts stunned his conservative supporters in 2012 by writing a 5-4 decision that upheld the law’s “individual mandate” requiring that nearly everyone have health insurance or pay a fine.

The argument Tuesday occurred amid all the trappings of a historic case. Chanting demonstrators, primarily aligned with abortion-rights advocates, braved the unseasonal snowfall outside. Inside, Democratic Sen. Patty Murray of Washington state sat next to Republican Sen. Roy Blunt of Missouri, as well as several members of the House of Representatives. More than 100 reporters squeezed in to watch.

The hearing consolidated two challenges.

One was brought by Hobby Lobby, a multibillion-dollar Oklahoma-based company that employs about 13,000 people nationwide. The other was brought by Conestoga Wood Specialties, a smaller firm owned by a Mennonite family in Pennsylvania’s Lancaster County. The devout family members who own the companies were in the courtroom Tuesday.

“You’ve picked great plaintiffs,” Sotomayor acknowledged.

The health care law, which passed in 2010, requires that insurance policies cover certain preventive practices without fees or cost-sharing from the patient. Many are uncontroversial, such as immunizations and diabetes screening. Policies are also supposed to cover contraceptives, sterilization procedures and counseling.

Abortion opponents consider several of the approved contraceptive methods, such as the drug known as Plan B, tantamount to an abortion.

Both companies have invoked the First Amendment’s provision that guarantees the right to freely exercise religious beliefs. The companies also claim protection under the 1993 Religious Freedom Restoration Act, which offers religious practitioners protection against government intrusion.

“You have a government law that specifically says you must do something that violates your religion, and it’s enforced with a penalty,” argued attorney Paul Clement, representing the companies.

The first big question Tuesday was whether this protection extends to for-profit corporations as well as living, breathing individuals. If it does, U.S. Solicitor General Donald Verrilli argued, then female employees at Hobby Lobby and Conestoga Wood Specialties would be shortchanged, because they wouldn’t have access to contraceptives through the standard insurance package.

“The court must take account of the way the suggested accommodation would affect the rights and interests of third parties,” said Verrilli, who represented the federal government. “The exemption is going to extinguish the rights of third parties.”

Justice Elena Kagan was the most forceful advocate for the contraceptive provision Tuesday, repeatedly pressing Clement and raising pointed questions about how far the corporate religious claims might go.

“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.’”

Churches are already exempt from the contraceptive mandate, and employers with fewer than 50 workers need not provide any health insurance coverage at all. Religiously affiliated nonprofits have a special accommodation, so they don’t have to directly provide contraceptive coverage.

But for-profit companies aren’t exempted, and those that don’t provide contraceptive coverage face fines of $100 a day per employee. For Conestoga Wood Specialties, which has about 950 employees, that adds up to $95,000 a day. For Hobby Lobby, the potential fine reaches $1.3 million a day.

If the court’s majority reasons that certain for-profit corporations can make religious claims, the justices must next decide whether widespread access to contraceptives represents a compelling government interest. Several conservative justices stressed that the various exemptions already provided under the law demonstrate that the government’s interest can’t be all that compelling.

“It must have been because contraceptive coverage was not that important,” said Justice Anthony Kennedy, a frequent swing vote.

Kennedy pressed both sides almost equally Tuesday, making him seem the most likely deciding vote on a court that’s otherwise apparently divided 4-4.

Justice Clarence Thomas, as is his custom, was the only one of the nine justices to neither speak nor ask questions during the oral argument. A decision is expected by the end of June, when the court concludes the term that began last October.

The U.S. Court of Appeals for the District of Columbia Circuit heard a separate case Tuesday that could have even broader stakes for the health care law and its insurance exchanges. The case challenges federal subsidies offered to help people buy insurance in the several dozen states that haven’t set up their own insurance exchanges.



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