High court split on birth-control mandate

The Supreme Court appeared sharply divided Tuesday over an ObamaCare mandate that requires employers to offer birth-control in worker health plans, leaving in limbo a key provision of the embattled healthcare law.

The case, ObamaCare’s second foray before the high court, pits the government against a pair of for-profit companies who claim they should be exempt from parts of the mandate because of religious objections to certain forms of birth control.


The justices, in taking up the challenge, must grapple both with the limits of a corporation’s religious freedom and a woman’s right to reproductive health services under the president’s signature legislative achievement.

During arguments Tuesday, the court’s liberal wing rushed to the government’s defense – arguing the mandate is firmly grounded in the landmark health law.

“Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage,” Justice Elena Kagan said. “And when the employer says, ‘No, I don't want to give that,’ that woman is quite directly, quite tangibly harmed.”

Kagan and other liberal justices warned that allowing the companies to opt out of the mandate could pave the way for a flood of lawsuits from private firms claiming all religious exemptions from other laws on the books.

The court’s conservatives appeared more receptive to the challenge brought Hobby Lobby, a chain of craft stores, and Conestoga Wood Specialties, a Pennsylvania-based cabinetmaker.

Justice Antonin Scalia bristled at the suggestion that the First Amendment’s free exercise clause does not apply to corporations – one of a handful of arguments employed by the government in defense of the mandate.

“There is not a single case which says that a for-profit enterprise cannot make a freedom of religion claim,” Scalia charged.

Justice Anthony Kennedy, a frequent swing vote on the court in recent years, again figures to play a pivotal role in the birth control mandate case.

He appeared, at times, to find fault with arguments from both sides, in one instance apparently agreeing with the liberals that a company could simply choose not to offer insurance at all, and pay $2,000 per worker penalty as set forth in the Affordable Care Act.

“Let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty,” he said. “How is the employer hurt? He can just raise the wages.”

Later, however, Kennedy questioned whether the mandate could lead to additional requirements on corporations.

“Under your view, a profit corporation … could be forced in principle to pay for abortions,” Kennedy said during his questioning of U.S. Solicitor General Donald Verrilli.

Verrilli said forcing companies to pay for abortions would fly in the face of other statutory language on the books.

The lawsuits brought by Hobby Lobby and Conestoga are among some 90 legal assaults on the contraception mandate.

They cite both the First Amendment’s free exercise clause and the 1993 Religious Freedom Restoration Act (RFRA), which provides that, “government shall not substantially burden a person’s exercise of religion.”

In defending the mandate, Verelli argued that a company is not, in the context of RFRA, a “person” capable of religious belief.

A rejection of that argument would force the government to show that the firms are not substantially burdened by the regulations – or that a “compelling government interest” in providing access to birth control outweighs those burdens.

Arguing against the latter claim, the challengers’ attorney, Paul Clement, said the allowance of other exemptions from the mandate should be viewed as “devastating” to the government’s claim of a compelling interest.

Scalia echoed that sentiment, noting that, “the government has made a lot of exemptions.”

The birth control mandate, imposed via regulations drafted under the Affordable Care Act, excludes houses of worship and offers accommodations to certain religious nonprofits that object.

But plans offered by for-profit firms must cover 20 FDA-approved contraceptive methods to workers at no cost. The services run the gamut from condoms and oral contraceptives to intrauterine devices (IUD) and surgical sterilization.

Hobby Lobby and Conestoga do not object to regulations requiring them to cover the majority of the methods, but do oppose those like the “morning-after pill” that block pregnancy by preventing the implantation of a fertilized egg in the uterus.

The companies could face steep $100-a-day penalties for each employee if they violate the regulations. That works out to nearly $475 million a year for Hobby Lobby, which covers more than 13,000 workers.

Conestoga, with 950 employees, would face penalties approaching $35 million annually.

A ruling is expected in late June, almost exactly two years after the Supreme Court alienated Republicans by upholding nearly all of the Affordable Care Act. 

While the GOP did not go on to claim the White House, the high court's 2012 ruling on ObamaCare was seen as galvanizing for Republican candidates further down the ticket, almost all of whom vowed to repeal the healthcare law. 

In the same way, the side that loses the birth control case is expected to use its defeat as a way to boost voter turnout in November. For Democrats, in particular, a loss could paradoxically provide momentum in an election cycle that currently favors the GOP. 

Democrats cited polls Tuesday showing that voters, particularly women, oppose allowing corporations not to cover birth control because of religious objections. 

Lawmakers and campaign officials used the Supreme Court case to paint the GOP as retrograde and oblivious to the concerns of most women. 

“A rejection of the contraception benefit would only take us back in time,” said Democratic National Committee Chairwoman Rep. Debbie Wasserman Schultz (Fla.) in a statement. 

“From opposing equal pay legislation, to delaying reauthorization of the Violence Against Women Act, to insisting politicians make medical decisions that belong between a woman and her doctor, the GOP’s agenda is as out of touch as ever.”

The court's decision will arrive as campaign season approaches its summer peak, giving either party a prime opportunity to take its frustrations to the voters. 

Roughly 300 chanting and sign-waving activists for women’s rights and religious freedom gathered Tuesday at the steps of the court in advance of the high-stakes oral arguments.

“I want freedom, how about you,” shouted supporters of the argument, who cite the First Amendment and the 1993 Religious Freedom Restoration Act (RFRA), which provides that, “government shall not substantially burden a person’s exercise of religion.”

Proponents of the provision say a ruling against them could result in reduced access to contraception for millions of American women.

“Hobby Lobby back away, birth control is here to stay,” the women’s rights activists chanted.

The scene was in stark contrast with the scorching hot day almost two years, when the court announced a 5-4 ruling in favor of law’s individual mandate.

On Tuesday, the crowd contended with a steady, wet snow and 32-degree temperatures.


Elise Viebeck contributed to this piece.

This story was first published at 12:33 and last updated at 4:22 p.m.