Supreme Court seeks compromise in contraception case

WASHINGTON -- The Obama administration struggled Tuesday to defend the "contraception mandate" in its health-care law before a Supreme Court clearly concerned about religious objections raised by employers.

While the justices were predictably divided along ideological lines, it appeared that a majority of them did not want to force even for-profit corporations to offer health policies that include birth control methods they claim causes abortions.

"Isn't that what we're talking about?" Chief Justice John Roberts demanded of the government's lawyer, Solicitor General Donald Verrilli, who clearly sought to avoid the inconclusive medical debate over intrauterine devices and morning-after pills. Verrilli responded that 2 million women rely on IUDs alone and do not equate their use with abortions.

But the radioactive issue of abortion wasn't the only hot-button issue raised by the case, in which two family-owned businesses are trying to avoid offering those birth control methods. During the 90-minute oral argument, the justices and litigators also tangled over religious freedom, corporate rights, federal mandates and the potential "slippery slope" that could result if the companies win their case.

The case represented a return engagement for President Obama's health care law at the court two years after its 5-4 decision upheld the law and its controversial individual and employer mandates. But the issue wasn't the constitutionality of the entire law. Rather, it was whether the government can mandate that contraceptives be provided free of charge by companies with more than 50 workers.

In a Supreme Court term that has lacked the drama of last year's gay marriage and civil rights cases or the prior term's health care showdown, the so-called contraception mandate became the marquee event. Supporters of religious liberty and women's rights demonstrated outside the court during an early spring snow.

The case has been the subject of more than 100 lawsuits across the country, including 78 that are still pending. More than 80 outside groups submitted briefs to the Supreme Court. A related case filed by an order of Catholic nuns called Little Sisters of the Poor required an emergency stay from Justice Sonia Sotomayor on New Year's Eve, just hours before she led the countdown for the ball drop at Times Square.

On one side is the Obama administration, insistent that health policies written under the Affordable Care Act include full coverage for all methods of birth control. On the other side are two family-owned corporations — the Hobby Lobby chain of arts-and-crafts stores and Conestoga Wood Specialties Corp., a Mennonite-owned cabinet maker. They cite religious objections to intrauterine devices (IUDs) and "morning-after" pills, which they say can cause abortions.

The owners of both companies sat side-by-side in the second row of the court's public section throughout the argument. They were treated to a return of the same two highly experienced litigators who argued the original health care case as well as last year's gay rights battle over the Defense of Marriage Act, Verrilli and former solicitor general Paul Clement.

Clement argued that the issue of contraception is "so fraught with religious controversy" that an exception should be made for the family-owned companies, as it was for churches and religious non-profits. But he was met with a barrage of questions from the court's three female justices.

First, Justice Sonia Sotomayor wondered whether other employers could protest having to cover other medical procedures, such as vaccines or blood transfusions. "Everything would be piecemeal, and nothing would be uniform," chimed in Justice Elena Kagan.

The court's liberal bloc also questioned whether for-profit corporations should be able to claim religious views; whether employees would be unduly burdened by the contraception exemption; and whether the companies' option of dropping health insurance altogether rendered their argument moot.

But the court's conservatives had their own set of arguments, led by their claim that the government had less burdensome ways of guaranteeing women contraceptive coverage -- such as providing it directly. And they took exception to the argument that corporations cannot cry foul.

"There's not a single case that says a for-profit enterprise cannot make a religious claim," Justice Antonin Scalia said.


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