Download: Birth Control Coverage Debate

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(Courtesy: Jay Schexnyder via CNN)

(CNN) — A key provision of the health care reform law championed by President Barack Obama came under harsh criticism from the conservative majority of the Supreme Court on Tuesday.

The justices debated a hotly contested issue testing the limits of government-mandated contraception coverage, specifically involving for-profit corporations that object to it for religious reasons.

The justices appeared divided along ideological lines in a 90-minute oral argument, with the federal government offering a spirited defense of the Affordable Care Act.

“How does a corporation exercise religion?” asked Justice Sonia Sotomayor, summarizing perhaps the key constitutional question at hand.

“This is a religious question,” said Justice Samuel Alito, suggesting the businesses have such a right. “You want us to provide a definitive secular answer.”

Before the hearing began, hundreds of demonstrators representing both sides of the issue rallied in front of the courthouse on Capitol Hill.

The court is reviewing provisions of the Affordable Care Act requiring for-profit employers of a certain size to offer insurance benefits for birth control and other reproductive health services without a co-pay.

At issue is whether certain companies can refuse to do so on the sincere claim it would violate their owners’ long-established personal beliefs.

Two separate appeals are being heard together.

The outcome was uncertain, but the court could cast preliminary votes later this week. A final written ruling is expected by late June.

The cases involve two appeals from Conestoga Wood Specialties. The companion legal challenge comes from Hobby Lobby, an Oklahoma-based arts and crafts retail giant. The Hahn family owns Conestoga and the Green family owns Hobby Lobby.

Both corporations emphasize their desire to operate in harmony with biblical principles while competing in a secular marketplace. That includes their leaders’ publicly stated opposition to abortion.

The cases present a complex mix of legal, regulatory, and constitutional concerns– over such hot-button issues as faith, abortion, corporate power, executive agency discretion, and congressional intent.

Political stakes

The political stakes are large, especially for the future effectiveness of Obamacare, which marks its fourth anniversary this week.

The botched rollout of, the federal site where consumers can sign up for insurance, has become another political flashpoint.

Republicans claim the law, approved by Congress without their support, is unworkable and are campaigning furiously against it in this year’s midterm elections.

The church-state issue now in the spotlight involves three-pronged rules negotiated last year between the Obama administration and various outside groups.

Under the changes, churches and houses of worship are exempt from the contraception mandate.

Other nonprofit, religiously affiliated groups, such as church-run hospitals, parochial schools and charities like the Little Sisters of the Poor, must either offer coverage, or have a third-party insurer provide separate benefits without the employer’s direct involvement.

Lawsuits in those cases are pending in several federal appeals courts.

For-profit businesses in spotlight

The Hobby Lobby and Conestoga claims are in yet another Obamacare category: for-profit corporations claiming a religion-based exemption.

These suits follow the high court’s decision two years ago that narrowly upheld the key funding provision of the health care law, a blockbuster ruling affirming that most Americans would be required to purchase insurance or pay a financial penalty, the so-called individual mandate.

The constitutional debate shifts to the separate employer mandates and whether corporations themselves enjoy the same First Amendment rights as individuals.

Three federal appeals courts have struck down the contraception coverage rule, while two others have upheld it. That “circuit split” made the upcoming Supreme Court review almost certain.

A key issue for the bench will be interpreting a 1993 federal law known as the Religious Freedom Restoration Act, requiring the government to seek the “least burdensome” and narrowly tailored means for any law that interferes with religious convictions. Can companies, churches, and universities be included, or do the protections apply only to “persons?”

“Our family started Hobby Lobby built on our faith and together as a family,” Barbara Green, Hobby Lobby co-owner, told CNN after the arguments. “We believe that Americans don’t lose their religious freedom when they open a family business. We were encouraged by today’s arguments. We are thankful that the Supreme Court took our case and we prayerfully await the justice’s decision.”

Vocal backing for mandate

In the arguments on Tuesday, Obama’s two appointees to the high court offered the most vocal backing of the mandate.

“Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage,” said Justice Elena Kagan. “And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.”

Sotomayor asked the lawyer for the companies: “Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?”

Solicitor General Donald Verrilli, arguing for the administration, said the case was really not about the government or the corporate officers: “The rights of the third party employees are at center stage here.”

“In the entire history of this country, there is not a single case in which a for-profit corporation was granted an exemption” on religious liberty grounds, when that would harm the rights of others, he added.

Tough questions

Justice Anthony Kennedy — who may prove the decisive vote — posed tough questions on both sides.

“The government, through its healthcare plan — under your view — is allowing the employer to put the employee in a disadvantageous position, he said at one point to Paul Clement, representing the Greens and Hahns. “The employee may not agree with these religious beliefs of the employer. Do the religious beliefs just trump? Is that the way it works?”

Clement said there were other ways to ensure an employer did not have to violate her religious beliefs, while still giving workers the mandated coverage.

“Because you have a unique situation here, where their policy is about a government subsidy for a government-preferred health care item, and the question is who pays?” said Clement. “The government paying or a third-party insurer paying is a perfectly good least restrictive alternative.”

Chief Justice John Roberts wondered whether government’s interest was really “compelling” as required, when the administration had already granted so many coverage exemptions — including to houses of worship, religious non-profits, small companies, and grandfathered health plans.

He suggested corporate rights extend into a wider range of areas, including allowing companies– along with individuals– to bring racial discrimination claims. “Does the government have a position on whether corporations have a race?” he asked Verrilli.

Kennedy later took issue with the government on another point.

“Under your view, a for-profit corporation could be forced in principle to pay for abortions,” which is currently not allowed under federal law.

“No. I think, as you said, the law now is to the contrary,” replied Verrilli, who said most women taking IUDs do not equate that with abortion.

“But your reasoning would permit that,” said Kennedy, sharply. “You say profit corporations just don’t have any standing to vindicate the religious rights of their shareholders and owners.”

“Isn’t that what we are talking about in terms of their religious beliefs?” added Roberts. “One of the religious beliefs is that they have to pay for these four methods of contraception that they (corporations) believe provide abortions.”

Under the ACA, financial penalties of up to $100 per day per employee can be levied on firms that refuse to provide comprehensive health coverage. Hobby Lobby, which has about 13,000 workers, estimates the penalty could cost it $475 million a year.

Abortion rights groups urged the justices to again uphold a key tenet of Obamacare.

“What I think we saw today was the importance of having (three) women on the Supreme Court,” said Cecile Richards, President, Planned Parenthood Action Fund. “What’s at stake in this case is whether millions of women and their right to preventive care including birth control is trumped by a handful of CEOs who have their own personal opinions about birth control.”

The cases are Sebelius v. Hobby Lobby Stores, Inc. (13-354); and Conestoga Wood Specialties Corp. v. Sebelius (13-356).


  • Kem112

    Your employer is not responsible in any way for your personal life choices!
    If you want to use birth control – it is your personal choice and action and has nothing to do with those who give you a job.

    • not a tea bag

      If employers want to decide what kind of health care you are permitted to seek then the should stop covering employee health care altogether.

  • Darrell Hylton

    I think when you start a business serving the public people need to check their fairytale beliefs at the door while running said business who are you to tell someone that doesn’t believe in your beliefs they can’t have something cause it offends your morals last I checked we live in a Democracy not a theocracy & to the people bitching and moaning about it may cost tax payers a little more to cover contraception are a bunch of bigoted hypocrites where’s all your outrage when it comes to important issues like billion dollar corporation receiving Government handouts in the form of subsidies while paying no taxes causing way more mayhem in the world while you idiots are worried about your sky wizard getting bent out of shape over woman reproductive and health practices SMH

  • tamariskisme

    If you do not want a child, practice abstinence. Abstinence works 100% of the time if you practice Abstinence. Stop playing “Russian Roulette” with your body. Where’s your self-respect? Confine the God given institution of marriage as defined between one man and one woman for a lifetime.

    • erica

      What world do you live in? It seems to me you believe that the only people that need contraceptives are those who are jumping from bed to bed. I have been with the same man for over six years I have 3 children and almost didn’t survive the birth of my twins. I will not take a chance of having another child and leave my children with no mother! There are many married couples who have made personal decisions to not have children should they not be intimate with their spouse because you don’t believe in birth control? It kills me that it’s always the same people opposing everything. You are against birth control, you are against abortion, but you also complain about the welfare program that feeds these children who are born to parents who can’t afford to take care of them. Pick an argument if you don’t believe in abortion or welfare wouldn’t make sense to give these woman a way to not have to resort to either?

    • Elaine

      March 26, 2014 at 7:18 pm
      Your are right. Abstinence works, but tell that to the MEN that get women pregnant.
      Women cannot get gregnant without a man and all men that do not want to get their partners pregnant should use it. Everyone needs to stop blaming women alone for getting pregnant. I had a medical problem which prevented me from using birth control. I ended up with four children that I do not regret having. My ex husband eventually got a visectomy and more men should consider that option. I am a catholic, I attend church every week, but I would still use birth control, if I needed to. I will let God be my judge, not a church. And finally everyone also needs to remember….. birth control prevents abortion!

  • Bruce Miller

    If my employers religion doesn’t believe in blood transfusions, than what? When will it stop?

  • Mike

    Companies don’t want to pay for birth control for women yet will actually cover viagra and cialis for men. It is a complete double standard.

  • Heidi

    Employers have always been able to decide exactly what is included in the plans they offer to their employees – no mandates until now! Also, please clarify that Hobby Lobby is not trying to avoid providing all birth control – only those “morning after” types that could terminate pregnancies rather than prevent them!

  • Tamara

    Here’s something, your body, your choice. You want to take birth control its ip to you not your employer.

  • Geneva Harvey

    Hobby Lobby DOSE provide birth control for their employes, what they are fighting is the ABORTION forms ie PLAN B

  • Carisa

    The personal beliefs of the owners are just that! Their personal beliefs! By allowing this exemption under the guise of religious belief is an imposition to the employees! This is about the same as removing prayer from school because of an Atheist. We are all entitled to out beliefs; however why should the beliefs of imprison the rights of other. If you own a business and have employees that has to pay expensive insurance premiums then why can’t the woman that’s paying her insurance with every payroll have access to Birth Control with the same ease men have getting the majestic blue pill with erectile disfunction? 4 hours doesn’t come close to 10 months of carrying and 18 yrs of stress!

  • Cynthia

    As I understand it, this article is misleading in that it broadly implies that the companies object to funding all kinds of birth control. I believe that the objection is simply to those forms of birth control which some people believe constitute abortion, i.e. an IUD (intrauterine device) and the “morning after” pill. Both interfere with the continuing development of an egg after it has been fertilized. Other forms of birth control are not in dispute by the employers. In other words — standard birth control pills would be funded just as would medications for other medical purposes.

  • Kristen

    Just go on welfare! SIgn up for caresource or medicaid, u get everything for free! WAT A FRIGGING JOKE! How abt u get a job and actually work like the rest of us :)

  • BasicCitzen

    The need for coverage has NOTHING to do with religion or “lifestyle” choices.

    When women have problems with their period, the first thing doctors do? prescribe birth control pills. It solves a lot of those issues.

    How do I know? I’m a woman on prescribed birth control–not to prevent pregnancy, but because I will be terribly ill (missing several days of work) if I have a “normal” period. I know of no employer that will let a woman take several days off a month to have her period.

    So, it’s not about religion. It’s not about whether women want to have babies or not. It’s about the need for women with valid medical issues to have their medication covered.

  • Elaine

    I, along with many women, cannot take birth control. I had a brain when hemorrhage when I was younger and was advised not to. I ended up with four children and this I do not regret. Women cannot get gregnant without a man and all men that do not want to get their partners pregnant should use it. Everyone needs to stop blaming women alone for getting pregnant.. Also, I am Catholic, I attend church every week, but I would still use birth control, if I needed to. I will let God be my judge, not a church. And finally everyone also needs to remember….. birth control prevents abortion!

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