In a long and lively argument that touched on medical science and moral philosophy, the Supreme Court Tuesday seemed ready to accept that at least some for-profit corporations may advance claims based on religious freedom.
Such a ruling would echo the court’s 2010 decision in Citizens United, which recognized free speech rights for corporations. But it would be only a first step in the court’s analysis of the lawfulness of a part of the Affordable Care Act that requires many employers to provide insurance coverage for contraception.
The justices seemed closely divided along ideological lines on other parts of the case. But Justice Anthony M. Kennedy, who probably holds the crucial vote, seemed frustrated with some of the Obama administration’s positions.
The questioning was sometimes technical but often unusually blunt and direct.
Kennedy asked Solicitor General Donald B. Verrilli Jr., for instance, whether for-profit corporations “could be forced in principle to pay for abortions” and be powerless to object on religious grounds.
Verrilli said that was right, though he added that there was no such law.
Chief Justice John G. Roberts Jr. jumped in. “Flesh it out a little more,” he said. “There is no law on the books that does what?”
Squirming, Verrilli said, “That requires for-profit corporations to provide abortions.”
Roberts looked puzzled. “I thought that’s what we had before us,” he said.
The two companies that challenged the law - Hobby Lobby, a chain of crafts stores, and Conestoga Wood Specialties, which makes furniture - say that some drugs and intrauterine devices are tantamount to abortion. Those claims are not generally accepted by scientists.
Verrilli said he did not question the sincerity of the companies’ beliefs. “With all due respect,” he added, “we’ve got about 2 million women who rely on the IUD as a method of birth control in this country. I don’t think they think they are engaged in abortion in doing that.”
By the end of the argument, there seemed to be a tentative consensus that the two companies, both controlled by religious families, could be allowed to claim rights under the relevant law, the Religious Freedom Restoration Act of 1993, without opening the floodgates to objections from major public corporations.
“You picked great plaintiffs,” Justice Sonia Sotomayor told Paul D. Clement, a lawyer for the companies.
Roberts said the court could limit its decision to privately held corporations. “Whether it applies in the other situations is a question that we'll have to await another case when a large publicly traded corporation comes in and says, ‘We have religious principles,'” he said, adding that this was “the sort of situation I don’t think is going to happen.”
Justice Samuel A. Alito Jr. asked about news reports that “Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane.”
“Now suppose,” he said, “Congress enacted something like that here. What would a corporation that is a kosher or halal slaughterhouse do? They would have no recourse whatsoever. They couldn’t even get a day in court.”
Much of the argument concerned whether the coverage requirement imposed a serious burden on the companies, a threshold question under the 1993 law. The companies remained free, some justices said, not to offer health insurance at all, pay a tax and emerge financially better off. On that point, the court’s liberal wing seemed to have Kennedy’s support.
“How is the employer hurt?” he asked.
But Roberts said that approach ignored another problem. “I thought that part of the religious commitment of the owners was to provide health care for its employees,” he said.
Kennedy also seemed to side with his more liberal colleagues when they said religious objections that imposed burdens on others should not be allowed. Here, Kennedy expressed solicitude for “the rights of the employees.”
“The employee may not agree with the religious beliefs of the employer,” he said. “Does the religious beliefs just trump? Is that the way it works?”
But Kennedy also had significant and possibly crucial reservations about the Obama administration’s carrying out of the contraceptive coverage requirement. It was hard to see, he suggested, how the requirement could simultaneously be a compelling government interest and yet be subject to a web of exemptions and accommodations for religious groups and others.
A decision in the two consolidated cases - Sebelius v. Hobby Lobby Stores, No. 13-354, and Conestoga Wood Specialties v. Sebelius, No. 13-356 - is expected by the end of June, two years after a closely divided court upheld another provision of the Affordable Care Act, one requiring most Americans to obtain health insurance or pay a penalty.
At the time, the decision created tension and bitterness on the court. But the references to it on Tuesday were lighthearted.
When Clement said his clients would face annual penalties if they failed to provide health insurance, Sotomayor corrected him, relying on a distinction that played a role in Roberts’ 2012 opinion upholding the law.
“It’s not called a penalty,” she said. “It’s called a tax.”
Roberts agreed, to laughter in the courtroom. “She’s right about that,” he said.
Later, Kennedy, who dissented in the 2012 case, playfully asked Verrilli whether “the constitutionality of the whole act has to be examined before we accept your view.”
Verrilli’s response was also greeted with laughter. “I think it has been examined, Your Honor, is my recollection,” he said