During a 90-minute oral argument, 30 minutes more
than usual, a majority of the nine justices appeared ready to rule
that certain for-profit entities have the same religious rights to
object as individuals do. A ruling along those lines would likely
only apply to closely held companies.
As in most close cases of late, Justice Anthony Kennedy will likely
be the deciding vote. Based on his questions, it was unclear whether
the court would ultimately rule that the companies had a right to an
exemption from the contraception provision of President Barack
Obama's 2010 Affordable Care Act, commonly known as Obamacare.
The dozens of companies involved in the litigation do not all oppose
every type of birth control. Some object only to emergency
contraceptive methods, such as the so-called morning-after pill,
which they view as akin to abortion.
The case marks the second time Obamacare has featured prominently
before the Supreme Court. In 2012, the court upheld by a 5-4 vote
the constitutionality of the act's core feature requiring people to
get health insurance.
Although the case has no bearing on the overall healthcare law, it
features its own volatile mix of religious rights and reproductive
rights. A capacity crowd filled the marble courtroom, while outside
hundreds of demonstrators, most of them women, protested loudly in
an early spring snowstorm.
The challengers are arts-and-crafts retailer Hobby Lobby Stores Inc,
run by evangelical Christians, and Conestoga Wood Specialties, which
is run by a Mennonite family. They sued under a 1993 law called the
Religious Freedom Restoration Act.
"We believe that Americans don't lose their religious freedoms when
they open a family business," Barbara Green, one of Hobby Lobby's
owners, told reporters after the hearing. "We were encouraged by
"OUT OF THE WOODWORK"
Liberal-leaning justices and the government said that allowing
companies to make claims could lead to a swathe of challenges to
government regulations, from Social Security to health coverage for
"If your argument were adopted ... then you would see religious
objectors come out of the woodwork with respect to all of these
laws," Justice Elena Kagan told lawyer Paul Clement, who argued
before the court on behalf of the companies.
The conservative members of the court did not seem convinced. Chief
Justice John Roberts said the ruling could be limited to closely
held companies. That outcome would "avoid all the problems" raised
by the government concerning how to determine if a company has a
valid claim, such as a situation in which some shareholders have
religious objections but not others, Roberts said.
His conservative colleagues, including Samuel Alito and Kennedy,
seemed to share that view.
"If you say they can't even get their day in court, you are saying
something pretty, pretty strong," Alito told Solicitor General
Donald Verrilli, the Obama administration's lawyer.
Kennedy hinted at his views in another exchange with Verrilli over
whether in a hypothetical situation a for-profit corporation, such
as a medical provider, would not be able to object if the government
required it to carry out abortions.
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Verrilli told the justices that the court would be "skating on
thin constitutional ice" if the companies won an exemption because
of the impact it would have on women employees. That view appeared
to be shared by Kagan, one of three women on the court. When an
employer refuses to provide the coverage, a female employee is
"quite directly, quite tangibly harmed," Kagan said.
BIRTH CONTROL ISSUE
On the question of whether the companies can ultimately win their
claim on the birth control provision, Kennedy hinted at some
sympathy for the government. He wondered whether the objecting
companies might have alternative means to avoid providing the
coverage. Rather than face fines for not providing the contraception
coverage, might they instead be able to pay employees more to buy
their own health insurance, thereby circumventing their religious
"How is the employer hurt? He can just raise the wages," Kennedy
Kennedy was seizing on similar comments made by liberal justices
Sonia Sotomayor and Kagan. Kagan noted that if a company were to
drop its health insurance, it would face a $2,000 per employee tax
under Obamacare, which would cost roughly the same as providing
The 2012 case overshadowed the proceedings on several occasions
during the argument, with Kennedy, one of the justices in the
minority who voted to strike down the law, joking to Verrilli, who
won the earlier case, that perhaps the court should take another
look at the entire healthcare law.
"Well, I think it has been examined, your honor," Verrilli said
to laughter in the courtroom.
A short distance from the Supreme Court, Obamacare faced a separate
legal challenge, which, if it succeeds, would further undermine the
2010 law considered to be the president's signature domestic policy
A three-judge panel of the U.S. Court of Appeals for the District of
Columbia Circuit appeared divided as it heard arguments from
businesses in states with federally run health insurance exchanges
who said the government was overstepping the authority of the law in
providing subsidies on the exchange.
The cases are Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius,
U.S. Supreme Court, No. 13-354, 13-356.
(Additional reporting by Joan Biskupic, Julia Edwards, David Ingram
and Ian Simpson; editing by Howard Goller and Grant McCool)
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