The Supreme Court ponders the contraceptive mandate
|WASHINGTON, DC
ON March 25th the Affordable Care Act, better known as “Obamacare”, was back before the Supreme Court. Two years ago the justices upheld most of the law. This week they heard oral arguments in Sebelius v Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v Sebelius. These two consolidated cases concern Obamacare’s “contraceptive mandate”—the requirement that businesses offering their employees health insurance must provide plans that cover all federally-approved contraception methods at no extra cost to their employees.
Hobby Lobby Stores and Conestoga Wood Specialties are both owned by Christians who believe that some of those contraceptive methods are tantamount to abortion, because they can prevent a fertilised egg from implanting in the uterus. The owners seek an exemption to the contraceptive mandate under the Religious Freedom Restoration Act (RFRA), a statute that Congress passed almost unanimously in 1993. This says that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”, unless the law is the least restrictive way to further a compelling state interest. (Many states have similar rules—see map.)
The administration has already exempted “religious employers”, such as churches, from the contraceptive mandate, and it has provided religiously-affiliated nonprofit corporations with an “accommodation” that directs payments for objectionable procedures through the insurance-issuer or administrator. The government argues that the religious beliefs of a for-profit corporation’s owners do not justify an exemption.
The case is hugely controversial. Outside the court, women’s-rights supporters wore pink and purple; some waved signs that said “Birth Control. Not My Boss’s Business”. Religious-liberty campaigners prayed and held signs that said “Religious Freedom. Everyone’s Business”. Ted Cruz, a conservative senator, showed up to predict the mandate’s demise.
The nine justices were similarly divided. The same two lawyers who argued the earlier Obamacare case faced off again this week: Donald Verrilli, the solicitor-general, for the government, and Paul Clement, a solicitor-general under President George W. Bush, for the corporations. Mr Clement, who argued first, was peppered with questions from the three women on the court: Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor, all reliable liberals. When Mr Verrilli took the podium, he was grilled by John Roberts, Antonin Scalia and Samuel Alito, three conservative (and Catholic) jurists. The court’s fourth liberal, Stephen Breyer, asked nothing of much consequence, while the court’s fourth doughty conservative, Clarence Thomas, was characteristically silent.
The two sides offered competing visions of horror. Ms Kagan worried that “religious objectors [would] come out of the woodwork” if the corporations prevailed, and that courts would have to grant presumptive exemptions to any aspect of federal law to which any owner expressed a sincere religious objection. Anthony Kennedy, another Catholic and the court’s perpetual swing vote, worried that on Mr Verrilli’s reasoning corporations “could be forced in principle to pay for abortions”. His line of questioning hinted at sympathy for the corporations’ position, as well as for Mr Clement’s argument that the many exemptions already granted to the contraceptive mandate showed that it is not the least restrictive way to pursue a compelling state interest. Contraceptives are widely available; the government could presumably pay for them itself.
The question of whether a corporation can have a religion came up early. American law has recognised that corporations have some First-Amendment rights; in Citizens United in 2010, the court held that free-speech protections bar the government from curbing corporate political spending too tightly.
Justice Sonia Sotomayor asked: “How do we determine when a corporation has [a] belief? Who says it? The majority of shareholders?” Hobby Lobby and Conestoga are both closely-held family firms. Should the court decide in the owners’ favour, it may do so narrowly—it is hard to imagine the law letting a listed firm with lots of owners claim to be religious.
Even for individuals, religious rights are not absolute: the RFRA does not let the devout kill blasphemers, or religious pacifists avoid taxes that fund the army. Mr Alito posited that denying the claim could harm religious professionals who chose to incorporate: if America followed Denmark and banned halal slaughter on animal-rights grounds, those butchers, if they incorporated, could not bring a religious-exercise claim. Justice Kagan argued that the harms fell elsewhere: “Congress has given a statutory entitlement...to women [which] includes contraceptive coverage. And when the employer says no…that woman is quite directly, quite tangibly harmed.” A verdict is expected later this year.
This article appeared in the United States section of the print edition under the headline "The Hobby Lobby hubbub"
