The Supreme Court, taking up a closely watched challenge to Obamacare, wrestled Tuesday with whether for-profit companies have a right to religious freedom and can invoke it to deny insurance coverage for contraceptives.
At an oral argument, it did not appear that there were five votes on the court willing to make a sweeping declaration that for-profit companies should have the same right as a church to claim a religious exemption from the law.
Some justices worried that companies could use such a right to deny coverage for vaccinations, blood transfusions and AIDS medications.
Justice Elena Kagan, one of the court’s liberals, said that if the court granted an exemption to the contraceptive mandate, it might invite challenges to other laws, including Social Security and the Family and Medical Leave Act.
“You would see religious objectors coming out of the woodwork,” she said.
The case turns on a provision of the health care law that requires companies with more than 50 employees to cover preventive care, including contraceptives such as the morning-after pill.
It was challenged by three companies: Hobby Lobby, a craft store chain, Mardel Christian bookstores and Conestoga Wood Specialties, which makes doors and other parts for kitchen cabinets.
The court could carve out a compromise and decide that closely held companies, but not corporate giants like Exxon Mobil or General Motors, get the same accommodation as churches and nonprofit religious groups do. In those cases, insurance companies are required to pay for the contraceptives, although some of the nonprofits have objected to that as well.
The Obama administration argued that freedom of religion applies only to the owners of the companies individually, not to the companies they run, which are required under Obamacare to provide insurance coverage for contraceptives.
The most aggressive questioners of the companies challenging the provision were the court’s three women, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Kagan.
Justice Anthony Kennedy, often the court’s deciding vote, seemed concerned about how to strike a balance between the religious interest of the companies and female employees’ legally guaranteed access to contraceptives.
In questions to Solicitor General Donald Verrilli, arguing for the government, Kennedy asked whether the government could in theory require companies to pay for abortion coverage. Chief Justice John Roberts jumped in to say that is what the companies say is effectively happening already.
Hobby Lobby and Mardel are owned by an Oklahoma family, David and Barbara Green and their children. The company’s official statement of purpose commits it to “honoring the Lord in all we do” and running the company “consistent with biblical principles.”
Norman and Elizabeth Hahn of Pennsylvania, who own Conestoga Wood with their three sons, are Mennonite Christians.
The families contend that the use of some contraceptives amounts to abortion, destroying a human life by interfering with a fertilized egg.
Outside court, Barbara Green of Hobby Lobby said that she was encouraged by what she heard inside.
“The choice the government has forced on us is unfair and not in keeping with the history of our great nation, founded on religious freedom,” she said. “We believe that Americans don’t lose their religious freedom when they open a family business.”
Justice Samuel Alito pressed Verrilli: “What is it about the for-profit corporation that is inconsistent with the free-exercise clause?”
More than three dozen for-profit corporations challenged the contraceptive mandate in federal courthouses. Hobby Lobby and Mardel prevailed in the lower courts, but Conestoga Wood lost its claim.
The companies rely not only on the Constitution but also on a federal law, the Religious Freedom Restoration Act, which says the federal government cannot “substantially burden a person’s exercise of religion.
Religious groups, 21 states and 107 members of Congress filed friend-of-the-court briefs on behalf of the companies. The ACLU and other civil liberties groups lined up on the other side.
The most recent NBC News/Wall Street Journal poll found that a majority of Americans, 53 percent, oppose allowing employers to opt out of the contraceptive requirement. That compares with 41 percent who think employers should be allowed to opt out.
A decision from the court is expected before its term ends in late June.
Reuters contributed to this report.
First published March 25 2014, 9:23 AM