The Obama administration struggled Tuesday to defend the so-called 'contraception mandate' in its fledgling health-care law
WASHINGTON -- The Obama administration struggled Tuesday to defend the so-called 'contraception mandate' in its fledgling health-care law before a Supreme Court clearly sympathetic to religious objections raised by employers.
While the justices were predictably divided along ideological lines, it appeared that a majority of them did not want to force for-profit corporations to offer health plans that include birth control methods they claim cause abortions.
"Isn't that what we're talking about?" Chief Justice John Roberts demanded of the government's lawyer, Solicitor General Donald Verrilli, who clearly sought to avoid the inconclusive medical debate over intrauterine devices and morning-after pills. Verrilli responded that 2 million women rely on IUDs alone and do not equate their use with abortion.
That wasn't the only hot-button issue raised by the case, in which two family-owned businesses with deeply devout owners seek to avoid offering those birth control methods. During the 90-minute oral argument, the justices and lawyers tangled over religious freedom, corporate rights, federal mandates and the potential "slippery slope" that could result if the companies win their case.
While demonstrators on both sides of the issue braved an early spring snowstorm outside the court, the debate inside represented a return engagement for President Obama's health care law two years after it was upheld in a 5-4 decision.
This time, the issue wasn't the constitutionality of the law itself but a much more narrow question: can the government require that employers provide 100% coverage for 20 types of contraceptives.
In a Supreme Court term that has lacked the drama of last year's gay marriage and civil rights cases or the prior term's health care showdown, the so-called contraception mandate became the marquee event. For that reason, the court's chamber was packed for the debate.
The contraceptive requirement has been the subject of more than 100 lawsuits across the country, including 78 that are still pending. More than 80 outside groups submitted briefs to the Supreme Court in the Hobby Lobby case alone.
On one side was the Obama administration, insistent that health policies written under the Affordable Care Act include full coverage for all methods of birth control. On the other were two family-owned corporations — the Hobby Lobby chain of arts-and-crafts stores and Conestoga Wood Specialties Corp., a Mennonite-owned cabinet maker -- who don't want to pay for IUDs and morning-after pills.
The owners of both companies sat side-by-side in the second row of the court's public section throughout the argument. They were treated to a return of the same two highly experienced litigators who argued the original health care case as well as last year's gay rights battle over the Defense of Marriage Act, Verrilli and former solicitor general Paul Clement.
Clement argued that the issue of contraception is "so fraught with religious controversy" that an exception should be made for the family-owned companies, as it was for churches and religious non-profits, such as charities and universities. He was met immediately with a barrage of questions from the court's three female justices.
Justice Sonia Sotomayor wondered whether other employers with religious objections would be able to opt out of covering other medical procedures, such as vaccines or blood transfusions.
"Everything would be piecemeal, and nothing would be uniform," chimed in Justice Elena Kagan.
The court's liberal bloc also questioned whether for-profit corporations should be able to claim religious views; whether female employees would be unduly burdened by the contraception exemption; and whether the companies' option of dropping health insurance altogether gave them a way around the mandate.
But the court's conservatives had their own set of arguments, led by their claim that the government has less burdensome ways of guaranteeing women contraceptive coverage -- such as providing it directly. And they took exception to the argument that corporations cannot have religious objections.
"There's not a single case that says a for-profit enterprise cannot make a religious claim," Justice Antonin Scalia said.
The central focus of the case was the Religious Freedom Restoration Act, passed by Congress in 1993. It was designed to give those with religious beliefs a way of fighting back against laws they consider a violation of those beliefs.
Unless the companies can hide behind that law, they face fines of $100 per day per employee. That could cost Hobby Lobby $475 million a year for its 13,000 workers. It would be much less expensive to drop health coverage, Kagan noted — $2,000 per employee per year, or $26 million, less than the cost of providing health insurance.
The companies contend that for-profit businesses should enjoy the same rights as people to exercise religious beliefs — even if they have $3.3 billion in annual revenue and rank 135th on Forbes' list of largest U.S. companies, as Hobby Lobby does.
The Supreme Court ruled in 2010's Citizens United v. Federal Election Commission that corporations have free speech rights and, therefore, can spend freely in federal elections. Whether they can practice religion is another question — one the justices need not answer if they base their decision on the owners' rights.
The companies and their allies also claim that the four contested birth control methods cause abortions by blocking a fertilized egg from implanting in the uterus, a warning that's included on Food and Drug Administration labels.
Groups that lobby for reproductive rights contend the drugs and devices do no such thing — they merely prevent fertilization by inhibiting ovulation or by preventing sperm from reaching the egg. That helps to prevent unwanted pregnancies, which often lead to surgical abortions later on.
The contraceptive challenge isn't the only challenge to the law, but it has the best chance of success. Other lawsuits pending in lower courts are challenging the way the law was passed, the way it was worded and the bureaucracy it created.
One of those cases, challenging the use federal subsidies in states without their own health insurance exchanges, was heard Tuesday at a federal appeals court just blocks away from the Supreme Court.
Even if the contraception challenge succeeds, the health care law will remain virtually intact. Its opponents contend that female employees ultimately will get full contraception coverage, either from the government or private insurers.
The decision could have a psychological impact, however, on a law that has suffered more than its share of website glitches and administrative delays. And it could have a political impact for the White House.