A majority of Justices seem skeptical of the contraception mandate.
The Affordable Care Act returned to the Supreme Court on Tuesday, as the Justices heard a major challenge to the law’s birth-control mandate. Five and maybe even six Justices across ideological lines seemed discomfited by the Administration’s cramped conception of religious liberty.
In 2012 the Health and Human Services Department published a regulation interpreting an ObamaCare provision to require all for-profit employer health plans to cover 20 contraception methods, including four that some religious believers consider abortifacients and sterilization. The combined cases of Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius are challenging the mandate under a 1993 law called the Religious Freedom Restoration Act.
RFRA was passed by a unanimous House, 97 to three in the Senate, and signed by Bill Clinton after the Supreme Court restricted religious liberty in a 1990 case. The statute merely holds that when government interferes with the free exercise of religion, it must narrowly tailor its regulations to serve a compelling interest and impose the “least burdensome” option.
The left-right coalition behind this legal doctrine has since collapsed and liberals are now working diligently to undermine the law. The Obama Administration was pushing its “war on women” election theme in 2012 and went out of its way to harm people of faith who are out of political favor.
HHS did exempt churches from the mandate, and religious nonprofits can apply for a quasi-exemption, which is being litigated separately. But the Administration’s remarkable argument is that if a business is incorporated and for-profit, it forfeits normal constitutional rights. Hobby Lobby is a chain of craft stores that is a closely held, family-run corporation that tries to operate in accord with biblical principles.
Trying to distinguish between for-profit and nonprofit corporate forms for this regulatory purpose is constitutionally unprecedented. Corporations are often treated as “persons” for legal purposes, such as protecting free speech, and prosecutors can indict entire corporations for breaking laws. As Chief Justice John Roberts observed, minority-owned businesses can bring racial discrimination lawsuits. So why can’t Christian- or Muslim-owned businesses exercise religion? Solicitor General Donald Verrilli had no good answer.
Liberal Justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn’t it also refuse to pay for blood transfusions or vaccinations? “Could an employer preclude the use of those items as well?” asked Justice Sonia Sotomayor in the day’s first question.
Yet no one is “precluding” anything. Contraception is cheap, plentiful and covered by most health plans. Most corporations are run for profit, not piety. Mr. Verrilli claimed the mandate is necessary to promote public health and gender equality, but HHS could have aided those goals without forcing a minority of business owners with moral aims to implicate themselves in what they consider to be grave moral wrongs.
HHS itself recognized religious sensitivity to the mandate by exempting some businesses but not others, and it could have extended the same conscience accommodations to for-profits as it did to nonprofits. Congress also could have created a free birth-control program for the poor or employees of religious institutions, or increased subsidies for Planned Parenthood. Even liberal Justice Stephen Breyer wondered whether the mandate was “the less restrictive way” to provide birth control, while Justice Anthony Kennedy noted that HHS believed “the health-care coverage was not that important” if some organizations already get an exemption.
The courts can also assess on a case-by-case basis which corporations really do operate on religious principles and thus deserve RFRA free-exercise protection. They will be the few Hobby Lobbies, not Exxon.
The Administration’s legal claims have no such limiting principle. Justice Samuel Alito pointed to a statute in Denmark that was a de facto prohibition of kosher and Halal butchering in the name of animal rights. If corporations lack religious rights, who could sue to overturn such a ban? Justice Kennedy carried the point further and suggested, what’s to stop Congress from mandating that businesses must pay for abortions?
Mr. Verrilli agreed that “if such a law like that were enacted, then you’re right, under our theory the for-profit corporation wouldn’t have an ability to sue.” He waved off that possibility by saying Congress wouldn’t pass an abortion mandate, but this merely underscores the radicalism of the Administration’s position. If RFRA doesn’t protect Hobby Lobby, then the law is as meaningless as Justice Sotomayor and Justices Elena Kagan and Ruth Bader Ginsburg seem to think it should be.
The real purpose of the mandate was to minister to the secular left and the so-called coalition of the ascendant, which is why the White House has fought this case up to the High Court rather than simply creating a waiver for religious minorities. The tenor of oral argument suggested the Justices will rebuke this threat to a religiously diverse society, and they certainly should.
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