Supreme Court’s 3 women question religious argument against birth control

The Supreme Court’s three women closely questioned the argument Tuesday that employers may opt out of providing contraception because it violates their religious beliefs.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — all part of the court’s minority liberal wing — expressed deep skepticism as to whether Oklahoma-based crafts chain Hobby Lobby has religious rights as a corporation, and whether its owners may opt out of providing some forms of birth control to employees because of it.

“How does a corporation exercise religion?” Sotomayor asked Paul Clement, Hobby Lobby’s lawyer in the case. She raised a spectre: Could for-profit corporations seek to get out of a host of federal statutes, such as those guaranteeing a minimum wage and forbidding discrimination, by claiming they violate their religious beliefs?

Hobby Lobby says the 1993 Religious Freedom Restoration Act (RFRA) protects it from having to provide the "morning after" pill and intrauterine devices to its 13,000 employees, as required by the Affordable Care Act. This case is the first time a large for-profit corporation has claimed protection under RFRA, typically thought to protect individuals and nonprofits.

Clement dismissed the slippery slope argument and said he did not believe large for-profit corporations would bring such suits in the future. Later in the argument, Chief Justice John Roberts agreed. More companies like Hobby Lobby, closely held by the Green family and which closes its stores Sundays to observe the Sabbath, are the only ones that would bring religious claims, they said.

Ginsburg said she did not believe the RFRA would have passed Congress with such overwhelming support if members had known it covered large, for-profit corporations — not just individuals and nonprofits.

With the court divided between the liberal and conservative wings, Justice Anthony Kennedy, the court’s conservative-leaning swing vote, appeared conflicted.

Kennedy asked Clement whether employers’ religious objections “trump” employees’ rights under the health care law to obtain contraceptives via health insurance. Clement answered no, but said the government could directly provide contraceptives to avoid a clash with religious beliefs.

Later, Sotomayor criticized this logic, asking what would happen when employers objected to providing other medical services for religious reasons. “Vaccines, blood transfusions … the government has to pay for all of the medical needs that an employer thinks or claims it has a religious exemption to?” she asked. Clement said the government may have a stronger argument in the case of vaccines, which he argued is more vital to public health.

Kennedy's question about employers' religious objections trumping employees' rights suggests he may be concerned a ruling for Hobby Lobby could quash individual liberties. But Kennedy also asked pointed questions about why the federal government decided to provide accommodations from the contraceptive mandate for religious nonprofits but not for other groups, apparently annoyed that the Obama administration tasked itself with deciding who deserved religious exceptions and who did not. He said that if the government decided to exempt some groups from providing contraceptives, the coverage “must not have been that important.”

Perhaps even more worrisome for the government's side, Kennedy also asked whether Congress could pass a law forcing for-profit companies to pay for abortions, under the government’s reasoning that no for-profit corporation has any claim to religious rights. Solicitor General Donald Verrilli, arguing for the government, said no such law exists. “I thought that’s what we had before us,” Chief Justice John Roberts said. He pointed out that Hobby Lobby’s owners sincerely believe the "morning after" pill and IUDs cause abortions, since they may prevent a fertilized egg from implanting in the uterus.

Verrilli countered that millions of women rely on IUDs and do not consider them to be causing abortions. Along with the "morning-after" pill, medical professionals by and large don't either. But Verrilli acknowledged that Hobby Lobby’s belief that they do is what “makes this case difficult.”

The justices will issue a decision in the case by the end of June.

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