LINDA WERTHEIMER, HOST:
Today the U.S. Supreme Court hears arguments in the latest challenge to the Affordable Care Act. This time the issue is whether for-profit corporations, citing religious objections, may refuse to provide some, or potentially all, contraception services in employee health plans. The ACA requires large employers to provide such coverage. Religious non-profits were exempted from this requirement, but for profit corporations were not. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The lead plaintiff before the court is the Hobby Lobby Corporation, a chain of 500 arts and crafts stores with 13,000 employees. The owners are conservative Christians who object certain methods of birth control - IUDs and morning after pills - because they can interfere with the creation of life once an egg is fertilized. Hobby Lobby President Steve Green.
STEVE GREEN: We believe that the principles that are taught scripturally is what we should operate our lives by and so we cannot be a part of taking life.
TOTENBERG: Company CEO and founder David Green.
DAVID GREEN: It's our rights that are being infringed upon to require us to do something that's against our conscience.
TOTENBERG: The government, however, points to a long line of Supreme Court cases that take a contrary view. The government maintains that the court has never found a for-profit company to be a religious organization for purposes of federal law. Indeed, the Justice Department says in its briefs that no government would be able to function if religious beliefs could be the basis for corporations refusing to comply with generally applied laws, be they child labor laws, immunization laws, laws that mandate businesses to serve racially mixed groups, and many other laws.
Furthermore, the government argues that Hobby Lobby, in claiming this exemption from certain provisions of the health law, is shifting the burden to its employees.
WALTER DELLINGER: This is an earned benefit, not a freebie. And it's an earned benefit to which women contribute their share of the premium.
TOTENBERG: Former Clinton administration Solicitor General Walter Dellinger has filed a brief siding with the government.
DELLINGER: The 13,000 employees of the Hobby Lobby corporate enterprise aren't and should not be expected to share the religious beliefs of the Greens. What you really have is one family attempting to utilize their economic leverage to impose their religious beliefs on others.
TOTENBERG: Not so, says former Bush Administration Solicitor General Paul Clement, who will argue today's case in the Supreme Court on behalf of Hobby Lobby. He observes that the constitution and federal statutes bar only the government from intruding on the free exercise of religion.
PAUL CLEMENT: The only government action here is the government action that forces the Greens to provide these contraceptive devices that they find morally objectionable. The federal government, for the first time, has decided that they are going to force one person to pay for another person's not just, you know, hip replacement, but something as religiously sensitive as contraception and abortifacients.
TOTENBERG: Today's case involves not just the constitution, but a statute, and a somewhat convoluted Supreme Court history. Until 1990, the Supreme Court applied a tough test to examine laws that disadvantaged people's religious beliefs.
Then, in the 1990, the justices changed directions. In a case involving penalties for the use of peyote as part of a Native American religious ceremony, the court ruled that as long as a generally applied law is neutrally applied, it's constitutional, even though it may have some unhappy consequences for some believers.
Congress hated that decision and in 1993 passed the Religious Freedom Restoration Act. It says that if a law imposes a substantial burden on the free exercise of religion, it has to meet a high threshold for justification.
The Hobby Lobby owners contend, first of all, that the ACA contraception mandate imposes a substantial burden because failure to comply results in big fines: $26 million a year for Hobby Lobby if it opts out of providing insurance. Supporters of the mandate counter that $26 million dollars may be a lot of money, but it is less than the company currently spends on insurance. Of course, Hobby Lobby points out that it wants to provide insurance, that having insurance fits in both with its religious ideas and good business practices.
The government replies that when you're a commercial enterprise, you may have to make choices. Here, either provide the insurance or pay a fine and let your employees go on the health care exchanges to buy insurance that include public subsidies. The Justice Department cites, as an example, a Supreme Court decision involving an Amish cabinetmaker. He was required to pay Society Security taxes for his employees, even though he viewed such payments as against his religion.
The company argues, however, that the mandate is not generally applicable since the law temporarily grandfathers health plans that have not changed since the law was adopted.
CLEMENT: We would never have said: Well, we don't want employers to discriminate on the basis of race, but as long as they continue their existing employment practices, they can get away with it. We would never have said that, because that prohibition was viewed by the government itself as absolutely compelling.
TOTENBERG: Finally, the Hobby Lobby says the government has no overriding justification for the contraception mandate.
CLEMENT: This isn't a case about access to contraception. It's not like the families here are taking action to prevent their employees from getting these devices if they want to do it with their own money and on their own time.
TOTENBERG: Not so, replies the government, noting that the Centers for Disease Control has said that the availability of contraception is a matter of public health necessity. Further, studies have shown one-third of women would change their method of contraception if costs were not a factor. And that the most effective methods are also the most expensive. IUDs, which Hobby Lobby owners object to, are 45 times more effective than the pill, given average use, and 90 times more effective than condoms. But IUDs are also the most expensive method, costing between 500 and $1,000 to buy and have put in.
The government also argues requiring that effective contraception and counseling in insurance plans is justified, as a matter of gender equality.
Marsha Greenberger is co-president of the National Women's Law Center.
MARSHA GREENBERGER: For an employer to say: I will cover all the basic essential health needs for men, but I am picking and choosing for women, and I am simply going to take out contraception or specific forms of medically approved contraction, it is sex discrimination because she has extra health care costs.
TOTENBERG: The Hobby Lobby corporation and its owners counter that the simple answer to these arguments is to have the government pay for contraception. The government replies that that is no answer, otherwise the government would end up paying for everything.
A decision is expected by summer.
Nina Totenberg, NPR News, Washington.
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