(March 28, 2014 / JNS) By Dmitriy Shapiro/JNS.org/Washington Jewish Week
In oral arguments March 25 over the reach of the Affordable Care Act (ACA) and the religious rights of private corporations, jurists on America’s highest bench seemed to split along predictable lines, with the Supreme Court’s liberal-leaning wing questioning former Bush administration Solicitor General Paul Clement’s reasoning that the health care law runs afoul of the Religious Freedom Restoration Act (RFRA) of 1993. On the other side, the more conservative faction led by Chief Justice John Roberts took current Solicitor General Donald Verrilli to task for contending that the free exercise of religion stops as soon as a business incorporates.
“So is there anything inherent in participating in a for-profit activity that’s inconsistent with a free exercise claim?” asked Alito, citing a case in which an Orthodox Jewish man challenged a Pennsylvania law that prevented businesses from operating on Sundays.
The business in that case, Alito pointed out, was for profit, just like Hobby Lobby Stores, Inc., whose case against Health and Human Services Secretary Kathleen Sebelius the Supreme Court is now reviewing. At issue is the ACA’s requirement for business-sponsored health plans to provide contraceptive coverage to women; as religious Christians, Hobby Lobby’s owners are claiming that the government is forcing them to engage in an activity that runs counter to their beliefs and in violation of the RFRA. Out of the 20 mandated contraception methods covered by the ACA, the company opposes four.
Both Clement (a Georgetown University law professor) and Verrilli had faced off before, when the ACA itself withstood a Supreme Court challenge two years ago.
The full-court press of Clement by Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg continued throughout the lawyer’s half of the 90 minutes allotted for oral arguments.
Clement argued that when crafting the ACA mandate, the government did not tailor it in a way that would present a minimal religious burden, as required by the RFRA. But Ginsburg questioned why he believed that RFRA, which was enacted to protect individuals’ religious liberty and the actions of religious groups, should be applied to for-profit corporations.
“People from all sides of the political spectrum voted for it,” said Ginsburg. “It seems strange that there would have been that tremendous uniformity if it means what you said it means – to cover profit corporations.”
Clement answered that congressional legislation after RFRA’s passage were generally extensions of religious freedom; if one wanted to draw conclusions about RFRA’s intent, congressional legislative tendencies point to a broad application of religious freedom to include for-profit corporations, he said.
But Sotomayor challenged Clement’s claims that Hobby Lobby’s rights are being violated by being compelled to provide coverage. Hobby Lobby can actually opt out of providing health insurance entirely if it had issues with what would be required; according to Sotomayor, the penalty of $2,000 per employee would actually cost the company less than providing health insurance coverage.
Clement disagreed, saying that since Hobby Lobby wants to foster a good work environment, it would like to include health insurance. He also said that if the company wanted to maintain its competitiveness in hiring and quality of employees, it would have to increase salaries—costing more than paying for insurance—if it dropped health insurance coverage.
Clement noted that the Department of Health and Human Services (HHS) has already made exceptions to the contraception mandate for the Catholic Church and allowed for alternative coverage methods for religious-based charities. Why couldn’t the government, he asked, make a similar accommodation for Hobby Lobby and other businesses?
The government’s argument rested on whether a for-profit corporation’s religiously driven decisions should be allowed to take precedence over the rights of a third party – in this case, its employees.
“The reason we make the argument we do at the threshold about why you ought not recognize claims under RFRA for for-profit corporations is that they are going to predictively give rise to the kinds of issues you have in this case,” said Verrilli, “in which the exemption is going to impose a burden on third parties or extinguish rights of third parties, employees or others, and that really can’t be what Congress was thinking about.”
As expected, Roberts and Justices Antonin Scalia and Samuel Alito took the lead in cross-examining Verrilli. Justices Stephen Breyer and Clarence Thomas did not join in.
When challenged by Alito on the Pennsylvania case, Verrilli answered that that law burdened individuals, whereas the ACA’s punishments fall on businesses.
Justice Anthony Kennedy—who is watched closely by experts as the court’s swing vote—spoke most when Verrilli presented the government’s side. Kennedy questioned Verrilli on where exactly HHS finds the language in RFRA specifying that for-profit corporations should be perceived different from religious organizations.
“Under your view, a profit corporation could be forced … in principle to pay for abortions,” said Kennedy.
“Well, I think that if it were for a for-profit corporation and if such a law like that were enacted, then you’re right, under our theory that the for-profit corporation wouldn’t have an ability to sue,” answered Verrilli. “But there is no law like that on the books. In fact, the law is the opposite.”
This article is exclusive to JNS.org.