March 26 2014
· Hobby Lobby's owners counter that Obamacare tramples on their right to practice their faith and avoid being complicit in the taking of life
· A slew of anti-Obamacare lawsuits have hit the courts, but this one is narrowly focused and a victory wouldn't change the entire law
· Liberal experts fear that a plaintiff's victory would open the floodgates to other private companies claiming exceptions to many other federal laws
· Conservatives say the First Amendment trumps the White House's desire – and Congress's intent – to see as many Americans insured as possible
· A decision, sure to be controversial, will likely come by the end of June
The U.S. Supreme Court heard oral arguments Tuesday in the case of a hobby-supply store whose owners say the Affordable Care Act is forcing them to act in contradiction with their Christian faith.
Hobby Lobby, a chain of 600 craft stores with more than 13,000 employees, took the Obama administration to court because it could face fines of $1.3 million per day – almost $475 million per year – if it fails to offer its workers a health insurance plan that includes a list of 18 contraceptives that the federal government deems 'essential.'
Four of those contraceptive methods, Hobby Lobby's founding CEO David Green believes, can end a human life because they prevent the implantation of a fertilized human egg into a woman's uterine lining. They include intrauterine devices (IUDs) and the so-called 'morning after' pill.
But the federal government contended Tuesday that those products aren't forms of abortion at all.
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Demonstrators rallied in front of the Supreme Court in Washington as justices heard oral arguments in a case that pits religious freedom against the Obama administration's enforcement of the Affordable Care Act
Supporters of the Obamacare law include feminist groups that argue carving out an exception for companies whose officers don't support certain forms of birth control would be an attack on women's rights
The Green Family, leaders of the Oklahoma-based Hobby Lobby chain, say their Christian faith prohibits them from paying for certain forms of contraception
Obama administration Solicitor General Don Verrilli told Justice Anthony Kennedy, a likely swing-vote between conservatives and liberals on the court, that he disagreed with a slippery-slope argument which suggested Obamacare could force companies to pay for abortions.
Verrilli said that argument was irrelevant because federal law doesn't see 'emergency contraception' as equivalent to an abortion, and it doesn't matter whether the Green family disagrees.
Obamacare 'abortion' fight goes to the Supreme Court
'People are saying that we are taking rights away from somebody, and there's no way we are taking anybody's rights away,' Green said in a YouTube video produced last month to drum up public support for his case.
'It's our rights that are being infringed upon to require us to do something that is against our conscience.'
If Green were to opt out of Obamacare and send his employees to government exchanges for their coverage, Hobby Lobby's penalties would be about $26 million per year.
That option is a viable one, two Supreme Court justices suggested during oral arguments on Tuesday. Sonia Sotomayor and Elena Kagan grilled Paul Clement, the company's lawyer, saying that since the Affordable Care Act provides the option to pay a tax instead of complying, the First Amendment's religious protections aren't at issue.
Clement, a U.S. solicitor general in the George W. Bush White House, said the company wants to provide its employees with health insurance, but also wants to avoid offering a narrow range of contraception options.
Justice Kagan has emerged as the chief critic of Hobby Lobby's position. According to a report from The Wall Street Journal, she complained that giving the company an exception to the Obamacare law would signal to other companies that their own peculiar religious objections were fair game.
'Everything would be piecemeal,' Kagan said. 'Nothing would be uniform.'
And, she said, a victory for Hobby Lobby would make 'religious objectors come out of the woodwork.'
Clement argued that the Obama administration has already carved out exceptions for religious organizations like churches, and hospitals run by religious denominations.
Extending it to devout Christians who express their faith through their businesses, he said, is a logical step.
The Hobby Lobby craft-store chain is at the center of a Supreme Court battle over President Barack Obama's health care law
Most of the Supreme Court justices seemed cool to the Obama administration's arguments on Tuesday, according to published eyewitness reports -- including Justice Anthony Kennedy, a likely swing-vote
Two female justices questioned on Tuesday whether a private employer can control which contraceptives his female employees can access, but Hobby Lobby's attorney said no one as prohibited from buying birth control on their own -- and suggested that the government could allay its own fears by paying for it
'We believe that the principles that are taught scripturally are what we should operate our lives by, and it actually flows over into the business,' Hobby Lobby president Steve Green said in the same video that featured his brother David.
'This is an issue of life. We cannot be a part of taking life.'
The question of whether a commercial corporation has the same religious-expression rights as a church or a religious-affiliated group is a thorny one.
'The First Amendment protects the rights of an individual to freely practice his or her religion,' said Delaware Democratic Sen. Chris Coons on Tuesday, 'but I take issue with the notion that for-profit corporations are capable of religious belief.'
U.S. Sen. Patty Murray is among the liberal lawmakers who see the Hobby Lobby case as an assault on women's access to contraceptives, although conservatives point out that women who work for objecting companies can still buy the products cheaply on their own
Most of the justices on Tuesday appeared skeptical of that position, according to eyewitness reports in major media.
Political tensions run throughout the Hobby Lobby case, which has also been joined by a Pennsylvania company, Conestoga Wood Specialties Corp.
'The president has given [Obamacare] exemptions for political reasons,' argues Texas Republican Rep. Kevin Brady, 'but is choosing to lay job-killing fines on those that believe in protecting the sanctity of life. In America, being a job creator should not mean you can no longer live and work according to your beliefs. This is not equal treatment under the law.'
The Greens are a particularly religious family, even by the standards of their native Oklahoma.
Steve Green is the driving force behind a national Museum of the Bible, a $50 million project slated to open in Washington, D.C. in early 2017/
The project's stated purpose is 'to bring to life the living word of God, to tell its compelling story of preservation, and to inspire confidence in the absolute authority and reliability of the bible.'
But the Greens' beliefs, say dissenters, aren't necessarily shared by their employees.
'Here the 13,000 employees of the Hobby Lobby corporate enterprise aren't and should not be expected to share the religious beliefs of the Greens,' former Clinton administration Solicitor General Walter Dellinger told NPR.
'What you really have is one family attempting to utilize their economic leverage to impose their religious beliefs on others.'
Hobby Lobby founder David Green (L) and his wife Barbara (C) are feeling positive about a legal fight that has become a major focus in the ongoing fight over the Affordable Care Act
Margot Riphagen of New Orleans, La., wore a birth control pills costume as she protested in front of the Supreme Court (The Hobby Lobby lawsuit involves the company's objection to IUDs and abortion-causing drugs, but not contraceptive pills.)
Clement countered with outrage that 'The federal government for the first time has decided that they are going to force one person to pay for another person's not just ... hip replacement, but something as religiously sensitive as contraception and abortifacients.'
And, he pointed out, the Greens are not 'taking action to prevent their employees from getting these devices if they want to do it with their own money and on their own time.'
Asked by Justice Samuel Alito during oral arguments whether there would be other contraceptive choices available to Hobby Lobby employees if the company should prevail on the short list that it objects to, Clement replied, 'There are ample [options].'
Former Bush administration solicitor general Paul Clement argued on Hobby Lobby's behalf that since the Obama administration has given religious institutions like hospitals a way out of the Obamacare law's contraception mandate, it must follow suit for private-sector conscientious objectors
The Greens have a recent federal law on their side: the 1993 Religious Freedom Restoration Act, which passed by landslide votes in both houses of Congress.
The law says that the federal government must show a compelling reason – on constitutional grounds – before it overrides a citizen's religious liberty, even with a law that applies broadly to everyone.
And even if the government establishes a constitutionally critical reason to disregard some Americans' rights to practice their religion, it must do so in the least restrictive way possible.
Utah Republican Sen. Orrin Hatch argued in a brief to the Supreme Court that the Religious Freedom Restoration Act is a 'super-statute,' intended to apply to the whole of American society including both nonprofit religious groups and for-profit companies.
Tennessee Republican Sen. Lamar Alexander joined in the brief. He said Tuesday that 'Obamacare is a thumb in the eye to our Constitution’s protections of religious freedom. The United States ought to be the last country on earth where people of faith are forced by their government to defy their religious beliefs.'
'I am glad these cases are now before the Supreme Court and am hopeful the court will find this administration has reached too far.'
But Democrats are pushing back, framing the Affordable Care Act as too important to erode, even on First Amendment grounds – and accusing Hobby Lobby of practicing illegal discrimination against women.
'There are those out there who would like the American public to believe that this conversation is anything but an attack on women’s health care,' Washington Democratic Sen. Patty Murray said in a prepared statement. 'To them, it's a debate about "freedom," except of course the freedom for women to access care.'
Pro-life activists supporting Hobby Lobby prayed outside the Supreme Court on Tuesday -- they fear that private employers will be forced to buy insurance for their employees that includes coverage for so-called 'abortifacient' drugs
'My hope,' she said, 'is that the Court realizes that women working for private companies should be afforded the same access to medical care, regardless of who signs their paycheck. We can’t allow for-profit, secular, corporations or their shareholders to deny female employees' access to comprehensive women’s health care, under the guise of a "religious exemption."'
Access isn't the issue, countered Hadley Heath, the health policy director of the right-leaning Independent Women's Forum.
'These cases do not represent a conflict between religious employers and female employees,' Health said Tuesday.
'Women have been and will continue to be free to seek out and purchase the contraceptives of their choice.'
Outside the Supreme Court, Texas Republican Sen. Ted Cruz spoke to a small group Hobby Lobby supporters, organized by tea party groups, who ventured out into a late March snowfall.
'The first freedom in the First Amendment,' said Cruz, 'is religious liberty.'