The Supreme Court on Tuesday expressed skepticism of the legality of the Obama administration’s refusal to accommodate for-profit companies’ religious objections to the Obamacare requirement that most firms provide contraception in their employee health plans.
A majority of the justices seemed particularly doubtful of one of the administration’s central legal claims: the assertion that for-profit companies have no religious rights under federal law.
During more than 90 minutes of arguments, several justices repeatedly questioned why the administration couldn’t give for-profit companies with religious objections the same kind of accommodation that has been offered to religious nonprofits. Those organizations have been offered the chance to opt-out of contraceptive coverage and have it provided through their insurance company or administrator.
As usual, Justice Anthony Kennedy appeared to hold the swing vote overall, though it seemed likely the court would rule against the administration on the initial question of whether corporations have at least some religious-freedom protections. The Justice Department has argued those rights belong only to individuals.
Kennedy expressed concern over how allowing an exemption to the contraceptive requirement would impact the broader law and employees who receive the coverage. However, he also raised the point that the contraception provision is included in the mandatory coverage list because of a regulation — not because of what Congress wrote.
And Kennedy seemed troubled by the government’s view about for-profit companies lacking religious rights.
“Under your view, a for-profit corporation…could be forced in principle to pay for abortions?” he asked Solicitor General Donald Verrilli. “Your reasoning would permit that.”
Chief Justice John Roberts noted that the plaintiffs in the two cases before the court view certain contraceptive methods as causing abortion, even though physicians and scientists disagree.
Isn’t this about “these four methods of contraception that they believe provide abortions?” Roberts said. “I thought that’s what we had before us.”
Verrilli said the government “respects” the sincerity of the company owners’ belief that Plan B, Ella and intrauterine devices can cause an abortion but carefully said that state and federal law does not classify them that way.
“I do think that is what makes this a difficult case, I agree,” the solicitor general said. He noted that there are already accommodations to ensure private employers don’t have to pay for abortions.
Justices Sonia Sotomayor and Ruth Bader Ginsburg staunchly defended the coverage requirement. Sotomayor questioned under what circumstances a for-profit company can claim religious intent.
“Who says it? The majority of shareholders? The corporate officers?” she asked. “Let’s assume just a business that sells 5 percent of religious books, doesn’t play Christmas music… works on Sunday, does nothing else religiously.”
Justice Elena Kagan also vigorously defended the coverage rule, arguing that Hobby Lobby and Conestoga were not being forced to provide insurance coverage and could simply choose not to by paying $2,000 per year per employee—an amount far lower than the cost of health insurance.
But she later voiced some concerns about the breadth of the government’s argument that for-profit companies lacked religious-freedom rights.
On balance, Kagan seemed to back the administration’s view. She said the exemption that the for-profit companies were seeking threatened to unravel much more than just contraception coverage and could lead to other firms seeking exemptions from laws barring sex discrimination or child labor or laws requiring family leave and a minimum wage.
“One religious group could opt out of this and one religious group could opt out of that, and everything would be piecemeal and nothing would be uniform,” Kagan warned. “Religious objectors would come out of the woodwork.”
Paul Clement, a former Republican solicitor general and attorney for the companies, rejected that by calling it a “parade of horribles” that would not materialize. He also said that the government would have a stronger “compelling interest” in requiring employers to keep some coverage, such as that for vaccines which work best when “herd” immunity is achieved by getting a large majority of people immunized.
Justices Antonin Scalia and Samuel Alito seemed most hostile to the administration’s position. Alito said the administration was asking the court to wade into a complicated area of theology addressing how close someone had to be to an action he or she views as immoral in order to be culpable for it.
“It’s a religious question and it’s a moral question, and you want us to provide a definitive secular answer to it,” Alito complained.
“The court still has to make a judgment of its own,” Verrilli said.
Several justices also noted that the Obama administration has granted delays to employers, exceptions to churches and accommodations to religious-affiliated nonprofits such as Catholic schools.
“It must have been because the health care coverage was not that important,” Kennedy said.
Regardless of how the court rules before the end of its term in June, the contraception coverage issue isn’t going away for some time.
More than 100 other employers have filed similar lawsuits. Lower courts have given temporary reprieves from the requirement to almost every company that has asked for one in anticipation of the Supreme Court weighing in.
Politico note: Natalie Villacorta contributed to this report.