[JURIST]
The US Supreme Court [official website] heard oral arguments [transcript, PDF] Tuesday on whether companies have a right to an exemption from the contraception provision of the 2010 Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder] for religious reasons. The plaintiffs in the combined cases of Sebelius v. Hobby Lobby Inc and Conestoga Wood v. Sebelius [SCOTUSblog backgrounders] contend they should be exempt from some of the coverage requirements of the PPACA’s pregnancy-related services mandate, including certain “abortifacient” contraceptives. Paul D. Clement, who represents the two corporations, argued that the regulation will impose a “substantial burden” on the corporations’ exercise of religion, which is protected by the 1993 Religious Freedom Restoration Act (RFRA) [text]. Alternatively, the corporations have asserted a claim that the mandate violates the Free Exercise Clause of the First Amendment [Cornell LII backgrounder]. The Supreme Court must decide whether corporations can “exercise” religion under the RFRA. Justices Elena Kagan and Sonia Sotomayor suggested that if corporations are exempt from having to provide birth control services due to their exercise of religion, the door could open for corporations to also refuse to fund vaccinations, blood transfusions, or even pay minimum wage for religious reasons. Clement responded, however, that each of those cases would have to be analyzed on their own based on the circumstances and applicable constitutional standards.

Solicitor General Verrilli, arguing on behalf of the government, said that the Court has never found a right to exercise religion for corporations, and tried to emphasize the rights of the employees who would be denied the best contraceptive coverage for them. Justice Kennedy, however, pressed Verrilli on the rights of the shareholders: “Under your view, a profit corporation could be forced in principle to pay for abortions. … You say profit corporations just don’t have any standing to vindicate the religious rights of their shareholders and owners.” The decision is expected to be split four to four, and will likely be determined based on with which side Justice Kennedy, whose comments seemed to favor both the government and the employers, ultimately agrees.