Birth control rule seems to divide Supreme Court

 Outcome could turn on often decisive vote of Justice Kennedy

By Mark Sherman
Associated Press

WASHINGTON (AP) — The U.S. Supreme Court struggled Tuesday with the question of whether companies have religious rights, a case challenging President Barack Obama’s health overhaul and its guarantee of birth control in employees’ preventive care plans.

The case is one of myriad legal challenges to the health care law, which is now being fully implemented and has emerged as a major issue in this year’s national election in which control of Congress will be at stake.

The justices upheld the overall health care law two years ago in a 5-4 ruling in which Chief Justice John Roberts cast the deciding vote in favor of Obama’s signature domestic legislation. The latest case focuses on a sliver of the law dealing with preventive services, including contraception, that must be offered in a company’s plan at no extra charge.

Peppering attorneys with questions in a 90-minute argument, the justices weighed the rights of for-profit companies against the rights of female employees. The discussion ranged to abortion, too, and even whether a female worker could be forced to wear an all-covering burka.

The outcome could turn on the views of Justice Anthony Kennedy, often the decisive vote, as his eight colleagues appeared otherwise to divide along liberal and conservative lines.

As the court heard the challenge brought by the Hobby Lobby chain of stores and others, demonstrators on both sides of the issue chanted outside in an early spring snow.

The family-owned companies that are challenging the provision provide health insurance to their employees but object to covering certain methods of birth control that they say can work after conception, in violation of their religious beliefs.

The justices have never declared that for-profit corporations, as opposed to individuals, can hold religious beliefs. The companies in this case, and their backers, argue that a 1993 federal law on religious freedom extends to businesses.

Among the groups opposing the administration is the U.S. Conference of Catholic Bishops. As it happens, Obama is to meet this week with Pope Francis.

The Obama administration says it’s not just about birth control, that a Supreme Court ruling in favor of the businesses also could undermine laws governing immunizations, pension taxes and minimum wages.

Kennedy voiced concerns about the rights of both female employees and the business owners. He wondered what would happen if an employer ordered a woman who works for him to wear a burka, a full-length robe and head covering commonly worn by conservative Islamic women.

He asked: Does the employer’s religious belief “just trump?”

One key issue before the justices is whether profit-making corporations may assert religious beliefs under the 1993 religious freedom law or the First Amendment provision guaranteeing Americans the right to believe and worship as they choose.

The court could skirt that issue by finding that the individuals who own the businesses have the right to object. But the justices still would have to decide whether the birth control requirement impinges on religious freedom, and if so, whether the government makes a persuasive case that the policy is important and has been put in place in the least objectionable way possible.

A decision is expected by late June.

In another courtroom a few blocks away appeals judges grappled with an another issue that is crucial to the success of Obama’s health care law, debating whether the government can subsidize premiums for people who buy medical insurance on exchanges run by Washington.

In a blunt assessment of the health overhaul and challengers to the Affordable Care Act, Judge A. Raymond Randolph described the launch of the act as “an unmitigated disaster” while Judge Harry Edwards said opponents of the law are seeking “to destroy the individual mandate and gut the statute.” The mandate is the requirement that nearly everyone have health insurance.

The third judge on the panel, Thomas Griffith, expressed skepticism over the administration’s argument that the subsidies are available regardless of whether people buy insurance on a state-run or federally facilitated exchange.

The exchanges in this case are of critical importance because most states have been unable or unwilling to set up their own exchanges. As a result, the federal government has stepped in to take the lead in 36 states.

A group of small business owners says the law authorizes tax credits only for people who buy insurance on exchanges established by the states.

The business owners are challenging a government tax regulation based on the act that says the tax credits are available to all qualifying individuals, regardless of whether they buy insurance at the state level or federally.

The case revolves around four words in the law, which says the tax credits are available to people who enrolled through an exchange “established by the state.”

The Affordable Care Act provides a federal tax credit for low- and middle-income people through the exchanges, a setup designed to achieve the law’s goal of widespread, affordable health care.