- The Washington Times - Tuesday, March 25, 2014

The Supreme Court searched Tuesday for ways to let women get birth control without the government forcing their employers to cover the cost, as justices tried to balance business owners’ religious rights against allowing religious objections to a broad range of public policy issues.

Justices touched on abortion, the limits of federal power and details of birth control, but the case centering on the Hobby Lobby craft store chain likely will come down to whether the court believes for-profit companies and their owners can claim a moral conscience objection to paying for employees’ birth control.

The court’s liberal members — particularly the three female justices — said allowing businesses to duck the contraceptive coverage rule would set a dangerous precedent.


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“So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform,” Justice Elena Kagan said.

Conservative justices sought a way to let women obtain coverage without having employers pay for it.

“Are there ways of accommodating the interests of the women who may want these particular drugs or devices without imposing a substantial burden on the employer who has the religious objection to it?” said Justice Samuel Anthony Alito Jr.


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Paul D. Clement, an attorney for the corporations suing to stop the mandate, said there are ways. He pointed to the government’s rule that allows religious nonprofits to divorce themselves from managing or paying for contraceptives, even though their employees are able to access them.

Justice Anthony M. Kennedy, a key swing vote, seemed to offer support for both sides during the 90-minute session. He suggested employees could suffer if corporations did not have to cover contraceptives, but he also wondered about the implications of the government’s policy.

“A profit corporation … could be forced in principle to pay for abortions,” he told Solicitor General Donald Verrilli Jr., arguing for the Obama administration as he did two years ago in the case over the individual health care mandate. “Your reasoning would permit it.”

The case could hinge on the 1993 Religious Freedom Restoration Act, which was crafted to thwart laws and mandates that would substantially burden a person’s free exercise of religion. The law says the government must have a compelling interest to impose a burden, and that its law must be the least-intrusive means of achieving that goal.

The case is the second high-profile challenge to President Obama’s health care law to come before the high court. In 2012, justices upheld the law’s mandate for most Americans to hold health insurance.

The Obama administration has carved churches, synagogues and other houses of worship out of the contraceptive mandate, and last summer issued a workaround for religiously affiliated nonprofits, though such groups widely dismissed it as inadequate.

But religiously devout owners of for-profit businesses have not been granted any exemptions for their moral beliefs.

Many of them sued, and their cases have been winding their way through the courts. Hobby Lobby, an Oklahoma-based crafts supplies company, won in the 10th U.S. Circuit Court of Appeals in Denver last summer, but the Obama administration triumphed in the case of Conestoga Wood Specialties — owned by Mennonites in Pennsylvania — before the 3rd Circuit in Philadelphia.

Justice Antonin Scalia wondered aloud whether there could be a compromise that would have someone other than businesses cover the most objectionable contraceptives such as the morning-after pill or intrauterine devices, which some say can result in early-term abortions.

But the liberal justices said they worried about treating corporations as if they had the same rights as individuals.

“Where are the cases that show that a corporation exercises religion?” Justice Sonia Sotomayor said.

Justice Kagan also said corporations had a choice to drop coverage altogether and pay the penalty under health care law’s employer mandate. She said that might be cheaper in some cases.

“It’s giving you a choice,” she said. “You can do this thing, or if this thing violates your religion, you can do another thing. And that other thing is approximately the same price as the thing that you don’t want to do.”

Analysts said the court may try to thread a needle of sorts by addressing the corporations’ plight without opening the door to wholesale religious exemptions on a spectrum of issues.

“I don’t think we know what that genie’s going to look like once it’s out of the bottle,” said James D. Cox, a professor of corporate and securities law at Duke University School of Law.

The corporations’ defenders, meanwhile, took heart in what they heard Tuesday.

“I found, on the whole, it was encouraging for our side,” said Joshua Hawley, counsel for the Becket Fund for Religious Liberty, which has represented objecting corporations.

Pro-choice activists, who say the contraceptive mandate is a women’s health issue, demonstrated outside the Supreme Court after the oral arguments.

Hobby Lobby is a craft store,” said Andrea Kline, a pro-choice activist standing with fellow demonstrators as snow fell on Washington. “They sell fake flowers and yarn; that’s their business, not religion. They have no right to be involved in the issue. If they give people insurance, that’s their employee’s business. Your boss shouldn’t be inside your body.”

Religious rights advocates pushed back.

“The choice that the government has forced on us is unfair and not in keeping with the history of our great nation founded on religious freedom,” said Barbara Green, co-founder of Hobby Lobby.

Democrats said a ruling against the government would roll back hard-fought victories for women’s health and give corporations too much power.

“This is not just a women’s issue; it’s a family and an economic issue,” said Sen. Tim Kaine, Virginia Democrat. “Corporate leadership just shouldn’t be making these decisions.”

Meghan Drake contributed to this story.