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Health law’s contraceptive mandate reflects deep divide in nation, high court

WASHINGTON – The Supreme Court on Tuesday wrestled with whether the federal government can require businesses to offer health insurance that includes complete contraceptive coverage – and appeared as divided as the nation appears to be over the issue.

The court’s three female justices, echoing the concerns of Planned Parenthood about possible health care discrimination against women, took up the cause of the contraceptive mandate, which is included in the Affordable Care Act.

But the court’s conservative justices, appearing to take the side of the Catholic Church, questioned whether the mandate impinged on the religious freedom of business owners who oppose artificial contraception.

And in the middle, seemingly arguing both sides of the case, was Justice Anthony M. Kennedy, so often the swing vote on a court with four liberals to his left and four conservatives to his right.

In an exchange with Paul D. Clement, the former solicitor general serving as the attorney for businesses that oppose the mandate, Kennedy asked, in essence: What about employees of those companies who want contraceptive coverage in their health care plans?

A ruling against the contraceptive mandate would amount to “allowing the employer to put the employee in a disadvantageous position” for the sake of religious freedom, Kennedy said.

But in a later exchange with Solicitor General Donald B. Verrilli Jr., Kennedy indicated that the government’s argument for the contraceptive mandate was so broad that it could extend well beyond the issue at hand.

“A for-profit corporation could be forced, in principle, to pay for abortions,” Kennedy told Verrilli, who argued on behalf of the U.S. government. “Your reasoning would permit it.”

At issue in the case is an “Obamacare” requirement that private companies that offer health insurance must include comprehensive contraceptive coverage without a co-payment.

Churches are exempt from that requirement, and while nonprofits affiliated with religious organizations must offer that coverage, the government has offered to pay for it.

At issue in the cases before the court Tuesday, then, was the health care law’s requirement that private businesses that offer insurance must also cover contraceptives.

In the cases, Hobby Lobby, an Oklahoma-based chain that its owner says was founded on Christian principles, and Conestoga Wood Specialties Corp., a company owned by Mennonites, argue that the mandate violates their religious beliefs.

While the case has special resonance for female employees of Hobby Lobby’s four Buffalo-area stores, Karen J. Nelson, president and CEO of Planned Parenthood of Central and Western New York, said that it is important for all sorts of employees.

“If you allow businesses to start picking and choosing medical benefits on the basis of their religious beliefs, what about coverage for other things, like mental health and vaccines?” Nelson said, noting that some faiths question those treatments, as well. “What it comes down to is that nobody wants the boss involved in their health care.”

But Monsignor Robert E. Zapfel, chairman of the Catholic Health Religious Sponsors & Corporate Members board and pastor of St. Leo the Great Parish in Amherst, said that local small businesses owners have complained to him about having to provide prescription coverage if they offer health care.

“Our concern would be that the teaching we have on contraception is a longtime teaching of the Catholic Church; it’s important to the right to life and dignity of every person,” he said, adding: “When an individual or corporation is forced to do something that’s against their basic moral principles, it needs to be challenged.”

All contraceptive methods are not at issue in the cases. Instead, the companies bringing the cases object to intrauterine devices and the “morning-after” pill, which they regard as tantamount to abortion.

Still, Justice Elena Kagan warned that if the justices were to overturn the contraception mandate on the grounds of religious freedom, all sorts of other government policies could be threatened by similar lawsuits.

“So another employer comes in, and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have a religious objection to minimum wage laws’; and then another, family leave; and then another, child labor laws,” Kagan said.

“The entire U.S. Code” could be subject to the highest level of constitutional review, she said.

Meanwhile, conservative justices stressed that since the high court has afforded corporations the same rights as individuals, the companies involved at the very least had the right to make their case. “If you say they can’t even get their day in court, you’re saying something pretty, pretty strong,” said Justice Samuel A. Alito Jr.

The court is expected to rule on the cases by June. The cases are Health and Human Services Secretary Kathleen Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius.