There was a clear difference of opinion between male and female justices at the U.S. Supreme Court on Tuesday. The issue was whether for-profit corporations, citing religious objections, may refuse to include contraception coverage in the basic health plan now mandated under the Affordable Care Act.
The female justices were clearly supportive of the contraception mandate, while a majority of the male justices were more skeptical.
The lead challenger in the case is the Hobby Lobby corporation, a chain of 500 arts and crafts stores that has 13,000 employees. The owners object to two forms of contraception, IUDs and morning-after pills, which they view as a form of early abortion.
Hobby Lobby lawyer Paul Clement had barely begun his argument when he was pelted with a series of hypotheticals.
Justice Sonia Sotomayor led off: What about employers who have religious objections to health plans that cover other basic medical procedures blood transfusions, immunizations, medical products that include pork?
Clement replied that each would have to be evaluated by the courts to see if it is fully justified and accomplished by the least restrictive means.
Justice Elena Kagan observed that using that reasoning, an employer might have a religious objection to complying with sex discrimination laws, minimum wage laws, family leave laws and child labor laws, to name just a few.
Clement responded that just because claims are being brought doesn't mean that they will all win. The courts, he said, can "separate the sheep from the goats."
"Have any of these claims ever been brought, and have they succeeded?" asked Justice Samuel Alito.
Answer: "Very few."
"With respect," interjected Kagan, "I think that that's probably because" until now this court has had "a different" understanding of how to interpret the constitutional and statutory law.
How, asked Sotomayor, does a for-profit corporation exercise religion? Whose religion is it? The shareholders'? The corporate officers'? How much of the business has to be dedicated to religion? And once you go down that road, aren't you having to do something that the court has "always resisted measuring the depth of someone's religious beliefs?"
Kagan noted that the Obama health law doesn't require corporate employers to provide insurance. The Hobby Lobby owners could have paid a fine, which, she observed, is much less than the cost of insurance. It's "a choice," she said.
"I thought part of the religious commitment of the employers was to provide health insurance," opined Chief Justice John Roberts.
"Exactly," replied lawyer Clement.
Justice Anthony Kennedy asked questions from a variety of perspectives. The government sees this case as the employer putting its employees in a disadvantaged position, he said. Do the employer's religious beliefs just "trump" those of the employees?
Justice Ruth Bader Ginsburg noted that in this case the employer is opposed to IUDs and morning-after pills. But, she said, suppose an employer objected to all contraceptives, as some employers have.
Clement conceded the point, agreeing that all contraceptives could be excluded on religious grounds.
When the government's chief advocate, Solicitor General Donald Verrilli, stepped to the lectern, he faced a different formulation from Kennedy. "Under your view, a for-profit corporation could be forced, in principle ... to pay for abortions."
Verrilli responded that there is no law that would require for-profit corporations to provide abortions.
"Isn't that what we are talking about?" interjected Roberts. "They have to pay for methods of contraception that they believe provide abortions."
We don't question their sincere belief, replied Verrilli, but IUDs and morning-after pills are legal contraception methods approved by the FDA. Moreover, he said, federal laws that ban funding for abortions do not consider these methods to be abortion.
Kennedy raised another issue, contending that the government had exempted "a whole class of corporations" from the provisions of this law.
The only exemptions are for churches, explained Verrilli, and special accommodations are made for religious nonprofits. The special accommodation is that the insurance company pays for the contraception coverage to employees, not the religious nonprofit itself.
Justice Stephen Breyer asked whether, as lawyers for Hobby Lobby have suggested, there is a method of providing contraception coverage for Hobby Lobby employees that is less restrictive of the owners' rights. Namely, have the government pay for the coverage.
This isn't very expensive stuff, chimed in Justice Antonin Scalia.
Verrilli replied that IUDs are the most expensive between $500 and $1,000 and the most effective method of contraception. Further, he said, even if the government agreed to pay when corporations invoked religious objections, corporations would say that signing the forms attesting to their objections would make them "complicit." Indeed, some nonprofits have made just that objection.
Alito focused on a different question: Why for-profit corporations should be barred from making claims that their religious rights are being infringed. "You say they can't ever get their day in court?"
Verrilli replied that the court has not ever recognized such a right. He pointed repeatedly to the court's decision declaring that an Amish carpenter had to pay Social Security taxes for his employees, even though paying such taxes violated his religious beliefs.
Alito, however, wasn't buying the argument. Suppose Congress passed a law barring kosher slaughter methods because it considered them inhumane. "Would an incorporated slaughterhouse have no recourse whatsoever?"
Verrilli replied that such a law could be challenged as targeted at a particular religion.
Roberts, perhaps looking for a narrow way to rule in the case, suggested that even if the court rules in favor of Hobby Lobby, that would only affect closely held corporations, not large publicly traded companies.
Within hours of the argument, critics noted that some giant corporations like Dell and Heinz are closely held corporations.