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April 1, 2014 10:44 am

In Contraception Mandate Case, Supreme Court Justices Split Along Expected Lines

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United States Supreme Court. Photo: wiki commons.

JNS.orgIn 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.”

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  • On the other hand if the HHS mandate remains the same for Hobby Lobby, then, all Hobby Lobby’s prolife employee group health insurance [“GHI”] plan members can file a civil rights lawsuit against the Obama Administration under 42 U.S.C. 1983 claiming a unique free exercise within a free exercise of religion claim as follows: First, as a condition of employment with Hobby Lobby, the government coerced a prolife religious adherent Hobby Lobby GHI plan member to violate religion in practice or else the U.S. Government would punished him or her for not doing so by a denial of eligibility to receive any or all otherwise available non-offensive to religion GHI plan benefits and moreover be responsible directly for Hobby Lobby incurring fines as well!
    Secondly, as a condition of employment with Hobby Lobby, the government in addition coerced a prolife religious adherent Hobby Lobby GHI plan member to consent to an always available temptation to violate religion in practice or else the U.S. Government would punished him or her for not doing so by a denial of eligibility to receive any or all otherwise available non-offensive to religion GHI plan benefits and moreover be responsible directly for Hobby Lobby incurring fines as well!
    The former is a violation of Evangelium Vitae, etc., as cooperating with evil.
    The latter involves a violation against the identical verse at Mark 14:38 and Matthew 26:41. “Watch and pray that you enter not into temptation. The spirit is willing but the flesh is weak.” This burden on the free exercise of religion in Sherbert v. Verner, 374 U.S. 398 (1963) remained prohibited, as proven as a matter of law in my Culture Wars magazine Letter to the Editor.
    Moreover in my Letter to the Editor above I prove as a matter of law how each Prolife Hobby Lobby GHI plan member is entitled to raise a de facto conscientious objector status objection as well, thereby refusing to join a GHI plan altogether. In short for the past 51 years now the government is following a fallacy to impose religiously offensive GHI plans whereas to the contrary if the definition of a free exercise of religion as valid is revealed, GHI will not be!

  • The above report stated that “But Ginsburg questioned why he (Clement) believed that RFRA, which was enacted to protect individuals’ religious liberty and the actions of religious groups, should be applied to for-profit corporations.”

    First of all, as I have proven in my Letter to the Editor titled UNCONSTITUTIONAL PER SE in the May 2013 issue of Culture Wars magazine on pages 8-10 in its paper edition and pages 10-13 in its electric edition, the HHS mandate is flat unconstitutional per se. Consequently oral argument must be re-argued after a new set of briefs presented based on my breakthrough in religious liberty which undermines all case law for 51 years now. For example I prove as a matter of law that Sherbert v. Verner upon which RFRA was exclusively based is clearly erroneous or a fallacy. Once my breakthrough in religious freedom becomes well known, RFRA will be declared a nullity as a matter of law.

  • Brian

    “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” — The government’s argument is incorrect here: it is whether religious exercise should be allowed to take precedence over an otherwise compelled subsidy; no right to contraception is being denied by the acceptance of Hobby Lobby’s position, only the administration’s preferred form of subsidy.

    General Verrilli’s position “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” is also erroneous when One considers the fact the text of RFRA explicitly states its requirements apply to ALL federal law, whether enacted before or after the enactment of RFRA. So, yes, it CAN be what the congress was thinking about because no other rational way to interpret the universal applicability requirement exists.

    Additionally, General Verrilli’s admission, “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,” clearly undermines the administration’s case because Article III clearly states the jurisdiction of the judicial branch “shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”. Therefore, any logic which leads to a contrary conclusion must be false.

    Likewise, General Verrilli’s assertion “But there is no law like that on the books. In fact, the law is the opposite” completely misses the point. First off, to the Objectors, this regulation does exactly what General Verrilli says it does not: result in the destruction of a fertilized, pre-implantation, Child. Though the technical definition of “abortion” requires implantation to first occur, legally speaking, that distinction is irrelevant. Furthermore, even if this were not the case, the fact a law COULD be passed is the point of Justice Kennedy’s question and not the focus on what currently is the law.

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