WASHINGTON — U.S. Supreme Court justices appeared sharply divided Tuesday over whether Hobby Lobby and other family-owned businesses should have to pay for health insurance coverage that includes contraceptive methods objectionable to the owners.
Some of the court’s conservatives said the government was effectively requiring Hobby Lobby to pay for abortions, since the company’s owners — David Green and his family, of Oklahoma City — believe that’s the effect that four of the contraceptives can have.
The three female justices, who constitute the majority of the court’s liberal wing, aggressively pushed the point that a victory for Hobby Lobby — a nationwide chain of arts-and-crafts stores — would mean for-profit companies could raise religious objections to vaccinations, blood transfusions and other medical procedures.
A majority of the nine justices appeared to accept the proposition that for-profit companies could bring a claim under the Religious Freedom Restoration Act.
That is a threshold question in the case, and the government’s attorney, Solicitor General Donald Verrelli Jr., argued that the Supreme Court has never given a for-profit company a religious exemption from a federal law.
Attorney Paul Clement, a former solicitor general who argued Tuesday for Hobby Lobby and the two other companies involved in the case, said Congress intended to protect the religious beliefs of all — including for-profit corporations — when it passed the Religious Freedom Restoration Act in 1993.
Oral arguments are not always a reliable barometer of how the court may ultimately rule because justices try to test the positions of both sides. However, on Tuesday, the court’s liberal and conservative wings telegraphed major differences in how they were approaching the issues, suggesting that the decision, expected before the court’s term ends in June, could come on a close vote.
Justice Anthony M. Kennedy, who is often a swing vote in close cases, seemed to be weighing his options carefully. He asked some tough questions that penetrated the complex layers of legal arguments on both sides.
Kennedy asked Verrelli whether the government’s reasoning in the case meant for-profit companies could be required to pay for abortions.
Verrelli acknowledged that, by the government’s reasoning, a for-profit company wouldn’t be able to sue to vindicate religious beliefs. However, he said the Affordable Care Act didn’t require companies to pay for abortions.
Chief Justice John G. Roberts Jr. then jumped in and referred to the fact that the Greens believe that the four contraceptives at issue in the case can cause abortion by preventing a fertilized egg from implanting in the womb.
“Isn’t that what we are talking about in terms of their religious beliefs?” Roberts said. “One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions.”
Verrelli said the government doesn’t doubt the company owners sincerely believe the contraceptives in question can cause abortion.
“But it isn’t a belief that we think is reflected in federal or state law or our traditions of where that line is drawn. ... And I do think that that is what makes this a difficult case,” Verrelli said.
But Kennedy also put Hobby Lobby’s lawyer on the spot when the justice joined the inquiry by liberal justices about whether the company could avoid paying for contraceptives by dropping its health insurance.
Justices Elena Kagan and Sonia Sotomayor told Clement that Hobby Lobby had a choice in whether to offer health insurance and that the company could actually save money by paying the $2,000 per employee tax rather than providing health insurance.
Kennedy asked Clement what Hobby Lobby’s case would be if dropping the insurance and paying the tax turned out to be a financial “wash.”
Clement stumbled somewhat but said dropping the insurance would also be a burden on Hobby Lobby as it tried to compete with other companies.
Kennedy also asked Clement whether Hobby Lobby and similar companies were seeking an exemption that would would put their employees in a disadvantageous situation.
“The employee may not agree with these ... religious beliefs of the employer,” Kennedy said. “(Do) the religious beliefs just trump? Is that the way it works?”
Clement said the question in this case could be resolved by the government paying for the contraception.
“This is not about access to the contraception,” he said. “It’s about who’s going to pay for the government’s preferred subsidy. And I think in that context, there are ample alternative ways to address any burdens on third parties.”
Appeals courts split
Outside the court on a windy, snowy morning, demonstrators supporting Hobby Lobby and others supporting the contraception mandate in the Affordable Care Act marched and chanted. Some of the same groups demonstrating on opposite sides had been united when the Religious Freedom Restoration Act was approved.
But this case, which involves abortion, contraception and Obamacare, is far more political than the one that prompted the 1993 act — peyote use by the Native American Church.
The 10th U.S. Circuit Court of Appeals in Denver sided last year with Hobby Lobby and Mardel, a Christian book store chain also owned by the Greens, ruling that the government had burdened the companies’ free exercise of religion with the mandate.
A federal appeals court in Philadelphia ruled the opposite way in a similar case involving Conestoga Wood Specialties, a furniture maker based in Pennsylvania that is owned by Mennonite Christians.
The U.S. Supreme Court on Tuesday combined the Hobby Lobby and Conestoga cases and the arguments related to both.
Hobby Lobby’s arguments
The company’s arguments include that corporations, not just individuals, are protected by the Religious Freedom Restoration Act. Also, the company argues that the contraception mandate is a burden on Hobby Lobby’s free exercise of religion because it requires the closely held corporation to violate its religious beliefs by offering health insurance that covers four types of contraception that could prevent a fertilized egg from implanting in the womb.