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Supreme Court justices divided during health law contraception hearing

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Supreme Court justices divided during health law contraception hearing

U.S. Supreme Court justices on Tuesday were divided in their examination of oral arguments for and against the federal government's authority to compel private employers to provide prescription contraceptive coverage to their employees.

The high court is expected to rule during this term, which ends in June, on the question of whether private employers with religious objections to the use of birth control should be exempt from a controversial provision of the Patient Protection and Affordable Care Act that requires employers with 50 or more full-time employees to provide their group health benefit plan members with cost-free insurance coverage for contraceptive prescriptions and services.

The companies seeking exemption from the rule — Conestoga Wood Specialties Corp., based in East Earl, Pa., and Oklahoma City-based Hobby Lobby Stores Inc. — were among the dozens of private for-profit employers, most owned and operated by devout Christian families, that have asked federal courts for an injunction blocking the requirement on the grounds that the requirement violates their rights to free expression of religion under the First Amendment to the U.S. Constitution and the Religious Freedom Restoration Act.

The nine justices devoted much of the 90-minute hearing deliberating over the threshold question of whether corporations are owed legal protection from enforcement of federal laws based on the religious views of their owners or executives.

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Justice Elena Kagan asked if using the 1993 Religious Freedom Restoration Act to grant private employers an exemption to the contraception coverage mandate would open the door for companies to sue for exemptions to other laws based on a religious objection, including workplace discrimination protections, minimum wage standards and child labor laws.

Paul Clement, the lead attorney for Conestoga Wood Specialties and Hobby Lobby before the high court, replied that judges in lower courts would still be able to exercise their own discretion in allowing such lawsuits to proceed.

“Just because free exercise claims are being brought doesn't mean the courts can't separate the sheep from the goat,” Mr. Clement said.

Justice Sonia Sotomayor worried that very discretionary exercise would inevitably place courts in the troubling position of measuring the sincerity of a company's religious convictions.

“That's the most dangerous piece,” Justice Sotomayor said. “That's the one we've resisted in all of our exercise of jurisprudence, to measure the depth of someone's religious belief.”

Chief Justice John Roberts said he believes it was unlikely that companies — particularly large companies — would begin en masse attempting to shield themselves from compliance with federal employment laws based on religious objections.

“Whether it applies in other situations is a question that we'll have to wait for another case where a large, publicly traded corporation comes in and says it has religious principles,” Chief Justice Roberts said. “(That) sort of situation, I don't think, is going to happen.”

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The high court also addressed the issue of whether the requirement was the least restrictive means of ensuring cost-free contraceptive coverage to millions of employees of private companies.

Justice Anthony Kennedy, viewed by many to hold the court's deciding vote in the case, wondered why the U.S. Health and Human Services Department could not extend to private employers an accommodation similar to the one it approved in July 2013 for religiously affiliated nonprofit organizations, in which insurers assume the cost of covering the contraceptives in place of the plan sponsor.

“I recognize delegation of power rules are somewhat abundant insofar as their enforcement in this court,” Justice Kennedy said. “But when we have a First Amendment issue of this consequence, shouldn't we indicate that it's for the Congress, not an agency, to determine that this corporation gets the exemption?”

Arguing for the government, U.S. Solicitor General Donald Verrilli noted that religious nonprofits have only been granted an accommodation — not an exemption — that still results in employees receiving the intended level of access to contraceptive prescriptions.

Additionally, Mr. Verrilli pointed out that many religious nonprofits have continued to seek a full court-ordered exemption from the mandate since the accommodation was finalized, and that many private employers would likely be similarly dissatisfied with the alternative arrangement.