SCOTUS Skeptical of Birth-Control Mandate

Things aren’t look­ing great for Obama­care’s con­tra­cep­tion man­date fol­low­ing or­al ar­gu­ments be­fore the Su­preme Court on Tues­day.

In ar­gu­ments that were part cul­ture war, part nit­pick­ing, and part health policy sem­in­ar, the Court’s con­ser­vat­ive bloc staunchly de­fen­ded busi­nesses’ re­li­gious rights while the three fe­male justices led the charge from the left.

Justice An­thony Kennedy, the Court’s tra­di­tion­al swing vote, seemed skep­tic­al of the gov­ern­ment’s de­fense — and of the way the Obama ad­min­is­tra­tion has im­ple­men­ted the policy. He sug­ges­ted at one point that the gov­ern­ment’s lo­gic could be used to de­fend a law re­quir­ing cov­er­age of abor­tion — a bad sign for the Justice De­part­ment.

The cases be­fore the Court on Tues­day were filed by two for-profit busi­nesses — Hobby Lobby, a chain of arts-and-crafts stores, and Con­es­toga, a cab­in­et-mak­ing com­pany. Both com­pan­ies are con­trolled en­tirely by the fam­il­ies that own them, and both fam­il­ies ob­ject to in­clud­ing at least some forms of con­tra­cep­tion in their em­ploy­ees’ health care plans.

The Justice De­part­ment has tried to block the law­suits, ar­guing that cor­por­a­tions can­not ex­er­cise re­li­gion and that the be­liefs of a com­pany’s own­ers don’t “pass through” to the cor­por­ate form. Justice Samuel Alito led the charge against that ar­gu­ment Tues­day, us­ing an ex­ample of kosh­er butchers who would be power­less to chal­lenge a law that out­lawed kosh­er but­cher­ing prac­tices.

“If you say they can’t even get their day in court, you’re say­ing something pretty, pretty strong,” Alito told So­li­cit­or Gen­er­al Don­ald Ver­rilli.

As­sum­ing the suits can go for­ward, the Justice De­part­ment needed to prove one of two things: that the con­tra­cep­tion man­date is not a “sub­stan­tial bur­den” on busi­ness own­ers’ re­li­gious liberty; or that the im­pos­i­tion is OK be­cause it’s the least bur­den­some way to ad­vance a “com­pel­ling” gov­ern­ment in­terest.

The Court’s con­ser­vat­ives didn’t think the policy cleared that hurdle. They noted that grand­fathered health plans — those that ex­is­ted be­fore the Af­ford­able Care Act passed — had to com­ply with some of the law’s new re­quire­ments, but not the sec­tion that in­cludes the con­tra­cep­tion man­date. The law re­quires most em­ploy­ers to in­clude a set of pre­vent­ive ser­vices, in­clud­ing con­tra­cep­tion, in their em­ploy­ees’ health plans without char­ging a co-pay or de­duct­ible.

Kennedy also honed in on a re­li­gious “ac­com­mod­a­tion” for re­li­gious-af­fil­i­ated in­sti­tu­tions like Cath­ol­ic uni­versit­ies, un­der which em­ploy­ees still get con­tra­cep­tion cov­er­age but the em­ploy­er doesn’t have to pay for it. The Health and Hu­man Ser­vices De­part­ment — not Con­gress — came up with that ac­com­mod­a­tion, and Kennedy said “it must have been be­cause the health care cov­er­age was not that im­port­ant.”

“What kind of con­sti­tu­tion­al struc­ture do we have if the Con­gress can give an agency the power to grant or not grant a re­li­gious ex­emp­tion based on what the agency de­term­ined? “¦ When we have a First Amend­ment is­sue of this con­sequence, shouldn’t we in­dic­ate that it’s for the Con­gress, not the agency to de­term­ine that this cor­por­a­tion gets the ex­emp­tion on that one?” Kennedy asked.

But Kennedy also picked up on one of the fe­male justices’ main ques­tions: Wheth­er the bur­den that weak­en­ing the con­tra­cep­tion man­date would im­pose on wo­men is great­er than the bur­den that en­for­cing it would place on busi­ness own­ers.

Justices So­nia So­to­may­or and Elena Kagan ques­tioned wheth­er the man­date is even a man­date — and there­fore wheth­er it rep­res­ents a “sub­stan­tial bur­den” on em­ploy­ers. The com­pan­ies could opt not to provide in­sur­ance at all, they said, and pay a fine that would cost about the same as provid­ing health be­ne­fits — and much less than the pen­alty for of­fer­ing cov­er­age that doesn’t in­clude con­tra­cep­tion.

“It’s not say­ing you must do something that vi­ol­ates your re­li­gion. It’s giv­ing you a choice. 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,” Kagan said.

Kagan, So­to­may­or, and Justice Ruth Bader Gins­burg dom­in­ated the first half of the or­al ar­gu­ments, press­ing Paul Clem­ent, who ar­gued for Con­es­toga and Hobby Lobby, on the oth­er ex­emp­tions em­ploy­ers might seek. Justice Steph­en Brey­er — the Court’s fourth lib­er­al — did not speak un­til late in the ar­gu­ments.

Kagan and So­to­may­or also ques­tioned wheth­er grant­ing Hobby Lobby an ex­emp­tion here — and set­ting such a high bar for the Justice De­part­ment’s de­fense of the con­tra­cep­tion man­date — would open the door to a wave of oth­er loop­holes.

“So an­oth­er em­ploy­er comes in and that em­ploy­er says, ‘I have a re­li­gious ob­jec­tion to sex dis­crim­in­a­tion laws.’ And then an­oth­er em­ploy­er comes in: ‘I have a re­li­gious ob­jec­tion to min­im­um wage laws.’ And then an­oth­er, fam­ily leave; and then an­oth­er, child labor laws. And all of that is sub­ject to the ex­act same test, which you say is this un­be­liev­ably high test,” Kagan said to Clem­ent.

A rul­ing is ex­pec­ted in June.