JUDY WOODRUFF: The hotly contested — or debated issues of contraception, religious freedom, and the president’s health care law took center stage today at the U.S. Supreme Court.We start with a look at the people involved in the case.
It comes from Tim O’Brien, who filed this report for the PBS program “Religion & Ethics Newsweekly.”
TIM O’BRIEN, Correspondent, Religion & Ethics NewsWeekly: The challenge is from the Conestoga Furniture Company in East Earl, Pennsylvania and by Hobby Lobby, a national chain of craft stores with some 28,000 employees.
Both companies are run by devoutly religious families who say requiring them to include certain contraceptives in their health insurance violates their religious convictions. The Obamacare contraception mandate requires companies to provide coverage for 20 government-approved methods of contraception.
The plaintiffs object to only four of them, those they say work like abortifacients, such as the morning-after pill.
STEVE GREEN, President, Hobby Lobby, Inc.: This is an issue of life. We cannot be a part of taking life. And so to be in a situation where our government is telling us that we have to be is incredible.
DAVID GREEN, CEO, Hobby Lobby, Inc.: And there’s no way we’re taking anybody’s rights away. It’s our rights that are being infringed upon to require us to do something that’s against our conscience.
TIM O’BRIEN: In deciding these cases, the Supreme Court will not be writing on a blank slate. Rather, it will be drawing on two of its most controversial decisions in recent memory.
In 1990, the court ruled Native American Indians could be punished for ingesting the hallucinogenic drug peyote, even though it was part of their religious rituals. More important, the court held that laws that apply equally to everyone do not have to make exceptions for religion.
The ruling set off an uproar, prompting Congress to pass the Religious Freedom Restoration Act. President Clinton signed the measure into law in a lavish Rose Garden ceremony after it passed the House unanimously and sailed through the Senate, 97-3.
That law is at the heart of this week’s Supreme Court cases. It states that the federal government shall not substantially burden a person’s exercise of religion unless it is the least restrictive means of furthering a compelling government interest.
Hobby Lobby tapped Paul Clement.
PAUL CLEMENT, Attorney, Hobby Lobby: You know, it may at first blush seem like there’s something odd about a corporation exercising religion, but a lot of people are familiar with something like Chick-fil-A, and if you try to get a Chick-fil-A sandwich on a Sunday you have a problem, because they’re closed on Sunday.
TIM O’BRIEN: The contraception mandate does make exceptions for churches and religious-oriented nonprofit corporations. There’s a grandfather provision exempting many other plans, and the law doesn’t even apply to companies with fewer than 50 employees. That adds up to millions of American workers who are exempt — so many, in fact, says Clement, that all the exemptions undermine any claim that the mandate furthers a compelling government interest, as the law requires.
PAUL CLEMENT: We’ve never had a law exactly like this, where the government tells me that I have to pay for somebody else’s abortifacients or contraceptives. I think to this point the government has recognized, you start talking about abortion and contraception, you are treading on religiously sensitive topics.
TIM O’BRIEN: The contraception mandate was drawn up by the Department of Health and Human Services and follows a report from the Institute of Medicine, a nonprofit division of the National Academy of Sciences.
The Institute concluded that contraceptives help reduce unwanted pregnancies, which reduces the number of abortions, but that many women do not have the resources to buy the contraceptives they need, or those that will be most effective.
DR. LINDA ROSENSTOCK, Institute of Medicine: We know that unintended pregnancies are quite prevalent in the United States; there are several million a year.
And we know that 40 percent of those end up in abortion. There’s also evidence that the more you provide family planning, the less unintended pregnancies there are, and the less abortions there are.
TIM O’BRIEN: While Hobby Lobby may have the support of many religions in the U.S., the health care community has rallied behind the government and the contraception mandate.
The Guttmacher Institute, a national and international champion for women’s health and reproductive freedom, tapped another Supreme Court heavyweight, Walter Dellinger, to make its case. Dellinger, solicitor general in the Clinton administration, says, even if Hobby Lobby is a person at all under the law, its claim to religious freedom is weak.
WALTER DELLINGER, Guttmacher Institute Attorney: Even assuming corporations can assert rights under the religion clauses or the Religious Freedom Restoration Act, a corporation is very unlikely ever to be able to establish a claim that it has a conscience that is being violated or overridden. There just isn’t a tradition of a for-profit corporation having a soul or being faced with damnation.
The compelling governmental interest here is that companies not be allowed to impose their religious views on their own employees in a way that substantially burdens the employee’s right to make her own decision about whether or not she wishes to use contraception.
TIM O’BRIEN: The implications of the court’s ruling could be enormous, defining what laws a person or corporation may challenge on religious grounds and under what circumstances government policy might override the exercise of individual religious faith.
JUDY WOODRUFF: Marcia Coyle of “The National Law Journal” was in the courtroom this morning, and she’s back with us tonight.
Welcome back to the program.
MARCIA COYLE, “The National Law Journal”: Thanks, Judy.
JUDY WOODRUFF: So, Marcia, as we see strong feelings on this case…
MARCIA COYLE: Yes.
JUDY WOODRUFF: … outside the courtroom, tell us how it went inside the courtroom with this, especially starting off with the arguments made by the lawyers representing these two companies.
MARCIA COYLE: OK.
It was a great argument, Judy. It was 90 minutes, but it really felt like 30, because we had two really good lawyers arguing the case, a lot of questions from the justices. The arguments focused primarily on the Religious Freedom Restoration Act, which is commonly called RFRA.
And as Tim O’Brien pointed out in his piece, there are really four parts of that act that the arguments are going to center on. One, are corporations a person able to exercise religious rights? Two, was the government requirement here of contraception coverage a substantial burden on the corporations and their owners?
Does the government have a compelling interest in providing or mandating that coverage? And, finally, has it chosen the least restrictive means? Mr. Clement was first at the lectern. And he immediately was questioned vigorously by Justices Sotomayor and Kagan.
Justice Sotomayor started with the threshold sort of issue: Can a corporation exercise religious rights? And, if it does, how does it do it? And Mr. Clement said, yes, it does, and he pointed to the fact that person, as defined by Congress in what is called the Dictionary Act, includes corporations.
Courts, he said, are very able to determine whether a corporation’s religious beliefs are sincere, just as they determine every day what a corporation’s intent or motivation is in other cases.
Mr. Verrilli came back to say that’s just the sort of excessive entanglement of government and religion that the Constitution strives to avoid. You’re going to have courts looking into the sincerity of religious beliefs.
JUDY WOODRUFF: And it was notable the other two women justices were behind many of the questions at this phase.
MARCIA COYLE: Yes, Justice Ginsburg.
JUDY WOODRUFF: Justice Ginsburg, Justice Sotomayor.
MARCIA COYLE: Right.
Justice Kagan probed what we call the slippery slope here. If it’s true that corporations can bring these claims, she and Justice Sotomayor asked, is your argument limited to sensitive issues or materials like contraceptives?
Justice Sotomayor said, what about religious adherents who don’t believe in transfusions, blood transfusions, vaccinations? And Mr. Clement responded, well, it does depend on the burden that is being placed on the person who has the religious belief, as well as it’s possible the government would have a compelling interest in imposing that burden. But there’s no compelling interest here in this particular case.
JUDY WOODRUFF: How unusual is it, Marcia, to have the three women justices coming at an argument like this?
MARCIA COYLE: Well, to be honest with you, it’s not unusual, because Justices Sotomayor and Kagan are very active questioners.
Justice Sotomayor is often the first questioner in any argument. But, clearly, they were ready and primed, I think, to go to the heart of the concerns that have been raised about the issues in this particular case.
JUDY WOODRUFF: So, tell us how the other side came at this, the attorneys representing the government, and we just saw Walter Dellinger, who is arguing for some of the reproductive freedom groups.
MARCIA COYLE: Mr. Verrilli, the solicitor general of the United States, told the court that corporations don’t exercise religious rights. They are not persons under RFRA.
He said that no court and no case has ever held that they exercise religious rights. Justice Scalia interjected, well, there’s no case that says they haven’t. But Mr. Verrilli did point to a case involving an Amish employer who wanted to opt out of Social Security, and the U.S. Supreme Court said they could not.
He tried — Mr. Verrilli tried very hard to bring the court’s argument somewhat back to the other parties that are affected in this case. It’s not just the employer, he said. It’s the burden on third parties, the workers. And Justice Kennedy did interject at one point, what about employees who don’t share the religious beliefs of the owners or the corporations? Does religion trump those employees?
JUDY WOODRUFF: So, vigorous questions, though, from the more conservative members of the court at this point.
MARCIA COYLE: Yes. They trained almost all of their questions on the government’s attorney, Mr. Verrilli.
JUDY WOODRUFF: And what did you find memorable about that?
MARCIA COYLE: I think they seemed hostile to the government’s arguments, although I never predict.
They’re very good at playing devil’s advocate. But it was clear that the chief justice, for example, asked a question. He said, the excessive entanglement of government and religion may be able to be avoided here by just saying that corporations that are closely held, S-type corporations like Hobby Lobby and Conestoga Wood, can bring these claims, and we will await another day when a publicly held corporation like Exxon tries to bring a claim, which he said, I don’t think will happen.
JUDY WOODRUFF: Marcia, there’s already analysis that Justice Kennedy, who you just mentioned, could end up being the swing vote here.
Is that — is it too early to say that? Or what did you — how did you read that?
MARCIA COYLE: No, it’s not too early. He often is the determining vote in cases where they are closely divided.
And they do appear closely divided here. His questions during the argument today would give some support to each side. So, he really didn’t tip his — his — where he was headed. Or he didn’t tip his hand in the arguments. So, we’re going to have to wait and see what he does with it.
JUDY WOODRUFF: And what about the comment we heard — and we heard at the end of Tim O’Brien’s report — that what the justices say in this case could have much broader implications for how corporations are seen and some of the other things you’re…
MARCIA COYLE: It absolutely could.
And you do have to wait to see how they write their decision, however they write it, narrowly or broadly, and who wins, actually. If they rule in favor of the corporations here, then there’s that concern that corporations will be able to bring other kinds of claims, trying to opt out of other legal requirements.
And some of the suggestions were, you know, are we going to see them trying to opt out of, say, our discrimination laws? And so it really does depend on how the court writes the opinion.
JUDY WOODRUFF: Not a dull day at that Supreme Court.
MARCIA COYLE: No.
JUDY WOODRUFF: Never is.
MARCIA COYLE: No, it isn’t.
And one other thing, Judy, I always forget to say. You can read the transcript of argument on the Supreme Court Web site right now. You can listen to the audio on Friday on the court’s Web site.
JUDY WOODRUFF: You can do it right at the end of the NewsHour.
MARCIA COYLE: That’s right. You can.
JUDY WOODRUFF: Marcia Coyle, thanks.
MARCIA COYLE: My pleasure.