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Supreme Court limits health care law’s contraception mandate

June 30, 2014 at 6:08 PM EDT
The Supreme Court ruled that family-owned corporations with religious objections are not required to pay for the contraceptive coverage of employees or their dependents. Marcia Coyle of The National Law Journal offers background on the case and Judy Woodruff gets debate on the potential fallout from Elizabeth Wydra of the Constitutional Accountability Center and attorney Kevin Baine.
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JUDY WOODRUFF: A sharply divided U.S. Supreme Court today ruled that some corporations can opt out of the Affordable Care Act’s contraceptive coverage mandate because of religious objections. The 5-4 decision comes two years after the justices upheld the president’s health care law, and it leaves the Obama administration to look for another way to make sure all women who want it have access to contraceptive care.

As word of the decision spread, cheers erupted outside the court from opponents of the contraceptive coverage mandate.

KRISTAN HAWKINS, Students for Life of America: The main takeaway is that our government overreached yet again. And our government cannot force individuals to violate their freedom of conscience and their freedom of belief.

JUDY WOODRUFF: On the other side, supporters of the mandate voiced disappointment.

MICHELLE KINSEY BRUNS: Clearly, the court is just out of touch on the will of the American people on this. Birth control is not controversial. It’s really not, except for a very small extreme religious minority.

JUDY WOODRUFF: Two companies successfully challenged the mandate in the Affordable Care Act. Hobby Lobby, based in Oklahoma, is a national craft store chain with more than 600 stores and some 15,000 full-time employees. It’s owned by an evangelical Christian family.

Conestoga Wood, a cabinet maker based in Pennsylvania, is owned by a Mennonite family, and has about 950 employees. Both firms argued that having to cover contraception violates their religious beliefs. The court agreed, ruling that such companies, controlled by a small number of people, may opt out of the mandate.
The decision doesn’t apply to other provisions in the health care law or to larger corporations.

Lori Windham is the attorney for Hobby Lobby.

LORI WINDHAM, The Becket Fund for Religious Liberty: Today’s decision is a landmark day for religious freedom. The Supreme Court — the Supreme Court recognized that American families do not lose their fundamental rights when they open a family business.

JUDY WOODRUFF: The view at the White House was decidedly different.

Spokesman Josh Earnest:

JOSH EARNEST, White House Press Secretary: The ruling allows the bosses of these women to essentially step in and say, well, I have a religious concern, so you’re not allowed to make your own decision about whether or not you would like to benefit from these services. We’re going to make sure that they aren’t provided. We strongly disagree with that. We believe that Congress should take action to fix it.

JUDY WOODRUFF: The contraception mandate faces separate legal challenges from religiously affiliated hospitals, colleges and charities.
And for more on today’s decision, we turn, as always, to Marcia Coyle of The National Law Journal.

Marcia, welcome back to the program.

MARCIA COYLE, The National Law Journal: Hi, Judy. Thank you.

JUDY WOODRUFF: Final day of the court, final day to issue.

MARCIA COYLE: Yes.

JUDY WOODRUFF: And this is a big one.
So the court is — the companies were saying, we’re being asked to violate our religious beliefs. What — in handing down this decision, what did the court base the decision on?

MARCIA COYLE: Well, Judy, the court starts with the law, the Religious Freedom Restoration Act.

And that act prohibits the government from imposing a substantial burden on a person’s exercise of religion, unless the government has a compelling interest and uses narrowly — the least restrictive means to further that interest. So Justice Alito, who delivered the majority opinion today for a 5-4 court, started with the language of the law.

Are for-profit corporations persons under the Religious Freedom Restoration Act? He looked to what’s known as the Dictionary Act that Congress uses to define certain words and statutes. Persons, he says, have always included corporation, and he noted that nonprofit religious organizations have been allowed to bring lawsuits under this particular law.

Justice Ginsburg wrote for the dissenters. And on this particular point, she did disagree. She said that it’s true that nonprofit religious organizations have been covered by the law, but that’s because the court has always given special solicitude to religious organizations that are formed from a common community of beliefs and designed to promote that belief. That’s not true of for-profit corporations.

Justice Alito then moved on, and he looked at whether this was a substantial burden on the Hobby Lobby and Conestoga Wood owners. And he said they faced enormous fines if they didn’t provide this coverage. And then he did assume that the government had a compelling interest in providing this care to women, but he said where the law failed was that the government didn’t choose the least restrictive means to further that interest.

He suggested the government could pay for this itself, or the government could extend an accommodation that it now gives to nonprofit religious organizations. They can just certify, signing a form, that they object, and then the burden shifts to their insurers or third-party administrators.

JUDY WOODRUFF: Did you have — do you get a sense from listening to and reading — listening to and reading what the justices ruled today, Marcia, that this is a decision that’s going to have broad implications for many other corporations?

MARCIA COYLE: Well, it depends on whose decision you read, whose opinion you read.

Justice Alito stressed in his opinion and from the bench when he read a summary that this was limited to closely held corporations and the contraceptive insurance requirement in the Affordable Care Act.

Justice Ginsburg said, uh-uh, closely held doesn’t mean small, and the way the law was read so expansively, she said, also means that large corporations may be using this as well. She predicted that there would be a host of me-too claims following this. How do you decide, she said, if — what do you do if a corporation comes in and says it doesn’t want to pay the minimum wage because of its religious beliefs?

JUDY WOODRUFF: What about — Marcia, what about — does this open the door more or close the door a little bit to further challenges to the Affordable Care Act?

MARCIA COYLE: Justice Alito had suggested in his opinion that one of the things the government could have done was extend an accommodation that it gives now to nonprofit religious organizations.

But the truth is, that is already under attack in the courts, many courts around the country, and it’s going to get to the Supreme Court. The Supreme Court has not yet ruled on the constitutionality of that.

There are also other challenges to the Affordable Care Act that are unrelated to the contraceptive insurance requirement. They’re pending in federal appellate courts. This was the second time, second challenge the court has taken up concerning this law. And I think there are going to be more down the road.

JUDY WOODRUFF: OK, Marcia. And we’re going to be coming back to you in just a minute about the other major ruling from the justices today.

MARCIA COYLE: OK.

JUDY WOODRUFF: But, for right now, we want to talk about the Hobby Lobby decision and what it’s going to mean practically.

Joining us are Elizabeth Wydra. She is chief counsel at the Constitutional Accountability Center. It’s a left-leaning think tank and law firm that filed an amicus brief in support of the Obama administration in today’s case. And Kevin Baine, he is a lawyer in private practice in Washington, D.C. He filed an amicus brief siding with the corporations.

And we welcome you both to the NewsHour.

Kevin Baine, to you first.

How do you interpret what the majority held today?

KEVIN BAINE, Constitutional Attorney: Well, I think court’s opinion actually was quite narrow.

There were two issues before the court. And the first one was whether a for-profit corporation, a closely held for-profit corporation that was formed in part to advance religious objectives has any religious interests at all that can be asserted in a case like this.

The government argued that it didn’t. And the court rejected that by a 5-2 vote, with two justices not taking a position on that. And then the court simply held that once you recognize that there is some First Amendment interest involved in these cases, the government has to show that there is no other means of accomplishing this in a less restrictive way.

And the problem the government had was that it really painted itself into a corner by saying, on the one hand, there are no religious interests at all here, but we want to accommodate genuine religious interests by offering this accommodation which is offered in the regulations.

And so once the Supreme Court said there was a religious interest, all the court said was, well, give those employers the same accommodation that you give to others.

JUDY WOODRUFF: Elizabeth Wydra, you obviously see this very differently.

ELIZABETH WYDRA, Constitutional Accountability Center: Absolutely.
I agree with Justice Ginsburg, who said in her dissent that the majority’s ruling was startlingly broad. And I think that’s right, because for the first time in more than 200 years of free exercise law, the court has said that a for-profit privately owned corporation can exercise religious free exercise rights, something that has been thought to apply only to living, breathing individual human beings, and not to artificial corporate entities.

But even with respect to that part of the decision, the ruling was already very broad. And then, while the court tries to limit its ruling, trying to say that it won’t impact claims against vaccinations or blood transfusions or anti-discrimination law, while it says that, as Justice Ginsburg says in her dissent, there’s really nothing that prevents the extension of the majority’s reasoning to those important claims that are incredibly important to workers across the country.

JUDY WOODRUFF: Why isn’t that a correct interpretation, Kevin Baine?

KEVIN BAINE: Well, in large part because the court says it’s not. You have to pay attention to the majority opinion says in trying to figure out the implications of this decision.

And Justice Alito, writing for the court, was very clear that this is a very narrow ruling. The dissent suggested, oh, my goodness, now people will be able to say we have religious objection to anti-discrimination laws. And Justice Alito said, no, that’s not the case. There is a compelling governmental interest in enforcing those laws. And there is no less restrictive way of doing so.

So I think it’s really incumbent upon those who say that it’s broader than Judge Alito says it is to make a persuasive case. And I don’t think it’s been made.

JUDY WOODRUFF: Why isn’t what the majority — Elizabeth Wydra, why isn’t what the majority justice says, why doesn’t that hold?

ELIZABETH WYDRA: Well, I think that while it would be great to take the Roberts court at their word on this, I think you have to look to the legal reasoning.

And, first of all, with respect to limiting it to closely held corporations, the majority opinion actually doesn’t expressly limit the recognition of corporate free exercise rights to closely held corporations. They say that it’s unlikely or improbable that a publicly traded corporation would be able to make these similar claims, but they could still bring them in court.

They might lose, but it’s still a right that is so broadly extended in an unprecedented manner.

JUDY WOODRUFF: So, why couldn’t this happen again or something — why couldn’t a case similar to this, Kevin Baine, be brought, say, on behalf of a firm with employees with different religious views who happen to have a different set of beliefs in one way or another from the ownership of the company?

KEVIN BAINE: Let me say three things. Let me say three things.
First of all, the women who are employed by these corporations will continue to receive these contraceptive services at no cost to themselves. Secondly, there are…

(CROSSTALK)

JUDY WOODRUFF: Let me just stop you there.

Elizabeth Wydra, you’re shaking your head no.

ELIZABETH WYDRA: I think that’s unclear.

I mean, first of all, what would need to happen for the female employees of these companies — we’re talking tens of thousands of women across the country just involved in this case alone. Who knows what it could mean when other companies come in.

But the government would have to engage in an accommodation, like the one suggested by the majority, where the government pays for the contraception. But if the government doesn’t pass some new regulations, then the women will be stuck with not being able to access all forms of FDA-approved contraception, unless they can afford to pay for it out of pocket.

JUDY WOODRUFF: Kevin, so, Kevin Baine, why are you convinced that the government will take care of this?

KEVIN BAINE: You have to believe that the Obama administration would allow these women to go — not have access to these services.
There’s really no doubt, if at all, about what the Obama administration will do. They have a regulation that accommodates religious objections. The Supreme Court has said to the administration, you should accommodate these religious objections as well in the same way. Of course they will do so.

JUDY WOODRUFF: All right. Well, continue with your point.
You were saying there are other reasons why you think…

(CROSSTALK)

KEVIN BAINE: My second point is that there are very few corporations who will be able to make the showing that these corporations made that they really were founded in large part on religious principles.

IBM, Exxon, Google, Apple aren’t going to be making those points. And the third point is that there are very few laws like the Affordable Health Care Act. This was a very unusual mandate that was imposed by the government, so unusual that the court came within one vote of striking it down altogether. So, this law doesn’t have too many parallels.

ELIZABETH WYDRA: Well, if we’re going to count 5-4 decisions, I mean, we came within one vote of having the traditional understanding of free exercise rights being upheld today.

But I think what’s important is that — you know, I think that Kevin is doing a valiant job of trying make this decision seem narrow, but, first of all, closely held doesn’t mean small. The largest private companies across the United States employ hundreds of thousands of people, and this mandate isn’t that unusual.

You know, essentially, the Supreme Court said in its majority today that the government should pay for these coverage items in the Affordable Care Act, but the government was trying to use the existing employer-sponsored health insurance plans.

But I think what’s important is that women across the country are going to see this ruling and think that the Supreme Court thinks that the interest in providing contraception coverage to them is a second-class compelling government interest.

JUDY WOODRUFF: Kevin Baine, explain why they shouldn’t draw that conclusion from what happened today.

KEVIN BAINE: There are not two classes of compelling governmental interests.

When the court says that something is a compelling governmental interest, that means it’s an interest of the highest order. The majority said that women’s right to access to these services is a compelling governmental interest of the highest order. And I don’t think it could have been any more clear about that.

There is a temptation to present this case as a conflict between religious freedom and reproductive rights. I don’t see it that way. There is a First Amendment and statutory right to religious freedom in this country. There is no right to have the government, much less a private employer, pay for reproductive services.

JUDY WOODRUFF: Very brief response.

ELIZABETH WYDRA: I think it’s right that you don’t see it that way, but I think a lot of women in particular across the country are going to see it differently.

And it’s important note, as Justice Ginsburg did, that the full range of approved contraception be provided to women without cost-sharing, so that the decision about what is the safest, most effective means of family planning is a decision made by a woman and her doctor.

JUDY WOODRUFF: We hear you both.

Elizabeth Wydra, Kevin Baine, thank you very much.

KEVIN BAINE: Thank you.

ELIZABETH WYDRA: Thank you.