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Justices hear case against the contraception mandate

March 25, 2014

    Dan Diamond, Managing Editor

    A seemingly divided Supreme Court on Tuesday heard arguments in Sebelius v. Hobby Lobby, a case that turns on whether the Affordable Care Act's contraception mandate is constitutional.

    The case was something of a rematch of the battle over the ACA two years ago—the same panel of justices; the same prominent lawyers—if for smaller stakes this time. And it was incredibly fast-paced, with arguments touching on a range of legal opinion and law, but centering on the 1993 Religious Freedom Restoration Act.

    Hobby Lobby's case

    Paul Clement—who again represented a challenger to the law, albeit a different plaintiff than the National Federation of Independent Business—had barely begun his opening remarks before being aggressively questioned by Justices Sonia Sotomayor and Elena Kagan. The two justices were quickly joined by Justice Ruth Bader Ginsburg, and the three women combined to push Clement on a key issue: If the Court ruled for Hobby Lobby, what other procedures could qualify for religious exemptions? Vaccinations? Blood transfusions?

    Clement responded that each treatment would have to be individually scrutinized to see if there was a compelling interest.

    "Every case would have to be analyzed on its own," he said. "I do think in the context of vaccinations, the government may have a stronger compelling interest than it does in this context because there are notions of herd immunity," Clement added.

    But if the Court was to rule in favor of Hobby Lobby on these grounds, Kagan suggested, it would create a new burden—the ruling would subject individual health care treatments like transfusions and vaccinations to the "highest test under our constitution" and result in a piecemeal approach to regulating health care.

    Kagan and Sotomayor also wondered aloud if Hobby Lobby truly faced a mandate to provide contraceptive coverage, or had a choice to opt out and pay a penalty.

    HHS defense focuses on rights of employees

    Defending the law, once again, was Donald Verrilli, the Obama Administration's Solicitor General. And just as the liberal justices pushed on Clement's argument, the conservative wing of the Court was quick to interupt Verrilli—who opened with a statement that Congress determined that contraceptive coverage was an essential benefit under the ACA—and insist that RFRA did allow for religious exceptions to general laws. And Chief Justice John Roberts suggested that the Court could rule narrowly and allow certain firms an exception to the contraception mandate.

    Also in play: The issue of the ACA's grandfathering provision. And several justices pointed out that since the ACA grandfathered in plans that don't offer contraceptive coverage, so how could the measure be so important and essential under the ACA? Roberts further pushed Verrilli to explain when HHS planned to end the grandfathering provision; Verrilli said he didn't know. "Shouldn't we assume in our analysis that it is current and, as far as we can tell, not going to end?" the Chief Justice asked.

    Justice Anthony Kennedy wondered if Verrilli's argument was also intended to "protect the operational integrity" of the ACA; the White House's lawyer agreed that yes, it was. So "does that mean the constitutionality of the whole Act has to be examined before we accept your view?" Kennedy mused. Amid laughter in the courtroom, Verrilli was quick to assure him that that question was closed. "I think it has been examined, your honor, is my recollection," he said.

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