By Mark Sherman
WASHINGTON: The Supreme Court seemed divided Tuesday over whether employers’ religious beliefs can free them from a part of the new health-care law that requires that they provide coverage of birth control for employees at no extra charge.
The case involves family-owned companies that 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 fast-paced 90-minute argument at the court touched on abortion and the health-care law in general, but focused mainly on the question of whether profit-making businesses have religious rights. The justices have never ruled that way before, but the companies in the Supreme Court case and their backers argue that a 1993 federal law on religious freedom extends to businesses as well as individuals.
The Obama administration and its supporters say a Supreme Court ruling in favor of the businesses also could undermine laws governing immunizations, Social Security taxes and minimum wages.
The outcome could turn on the views of Justice Anthony Kennedy, often the decisive vote. Kennedy voiced concerns both about the rights of female employees and the business owners. Kennedy asked what rights would women have if their employers ordered them to wear burqas, a full-length robe commonly worn by conservative Islamic women.
Later in the 90-minute argument, he seemed troubled about how the logic of the government’s argument would apply to abortions. “A profit corporation could be forced in principle to pay for abortions,” Kennedy said. “Your reasoning would permit it.”
Under the new health-care law, health plans must offer a range of preventive services at no extra charge, including all forms of birth control for women that have been approved by the Food and Drug Administration.
The three women on the court, Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, repeatedly questioned Paul Clement, representing the businesses, whether blood transfusions and vaccinations would be subject to the same religious objections if the court ruled for his clients.
“Everything would be piecemeal and nothing would be uniform,” Kagan said.
Clement acknowledged that courts would have to decide on a case-by-case basis, but he said only the kind of family-owned companies he represents would make such claims, not large, multinational corporations.
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.
The justices still would have to decide whether the birth control requirement really impinges on religious freedom, and if so, whether the government makes a persuasive case that the policy is important and is put in place in the least objectionable way possible.