Supreme Court hears oral arguments in challenge to Obama Mandate


By Dave Andrusko

Former Solicitor General Paul D. Clement

Former Solicitor General Paul D. Clement

In a widely anticipated case, the Supreme Court this morning heard two challenges consolidated into one case that are contesting the HHS mandate which compels employers to provide health coverage for drugs and procedures to which they have moral or religious objections.

Each side was given 45 minutes to present its case. The lead attorneys were the same as faced off two years ago when the High Court addressed the issue of ObamaCare’s individual mandate requirement: former U.S. Solicitor General Paul D. Clement, and current Solicitor General Donald B. Verrilli, Jr.

The Plaintiffs–Hobby Lobby Stores and Conestoga Wood Specialties Corp.– are family owned corporations. Hobby Lobby is a chain of arts-and-crafts stores while Conestoga Wood Specialties is a Mennonite-owned cabinet maker. They argue that the mandate, which are regulations adopted by the Department of Health and Human Services under a provision of ObamaCare–violates the 1993 Religious Freedom Restoration Act and the First Amendment’s free exercise of religion clause.

Most media accounts came to the conclusion that, as is so often the case, the swing vote is likely Associate Justice Anthony Kennedy. Adding suspense was that he asked questions that each side could conclude favored their position.

For instance, over at the, long-time Supreme Court watcher Lyle Denniston likened the discussion to “something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support.”

And the Washington Post’s Robert Kaiser wrote that “The three liberal and female justices were the most vocal in questioning Paul Clement. Justice Elena Kagan “said Clement’s argument could be extended to employers refusing to pay for blood transfusions or vaccines because of religious objections.”

Solicitor General Donald B. Verrilli, Jr.

Solicitor General Donald B. Verrilli, Jr.

Denniston wrote, “When it was Solicitor General Verrilli’s turn at the lectern, he found immediately that Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Samuel A. Alito, Jr., were ready to pounce, disputing each of the government lawyer’s core points” about the need for the mandate in this context.

Those included queries about what Congress meant when it passed the 1993 Religious Freedom Restoration Act, the religious rights of corporations, and why the government couldn’t pay for the services it wanted but to which the plaintiffs objected.

What Denniston described as the “low point” for Verrilli came near the end

“when Justice Kennedy told him bluntly: ‘Under your view, for-profit corporations can be forced to pay for abortion. Your reasoning would permit that…. You say that for-profit corporations have no standing to litigate what their shareholders believed.’”

Hobby Lobby, which has a workforce of 13,000 people of all faith, prevailed before the full 10th U.S. Circuit Court of Appeals.

“In a divided opinion, the appeals court relied in part on the Supreme Court’s decision in Citizens United v. Federal Election Commission, which said corporations have political speech rights just as individuals do in spending on elections,” Kaiser wrote. In that case Judge Timothy Tymkovich, writing for the majority, concluded “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”

A panel of the 3rd U.S. Court of Appeals ruled that the Conestoga Wood Specialties must comply with the HHS mandate.

The financial penalties for non-compliance are extremely heavy, particularly for Hobby Lobby with its large work force. The fine is $100 per day per employee–$365 million for Hobby Lobby.

Rep. Chris Smith (R-NJ) issued a statement this morning with this apt conclusion:

“This burdensome penalty is completely unfair, unreasonable, and unconscionable. The Obama administration is saying we will punish you, we will hurt you, we could even put you out of business for providing healthcare for your employees unless you provide healthcare according to the government’s conscience. Also, employees currently on their businesses health plan could lose the coverage they need for themselves and their families. [HHS] Secretary Sebelius and President Obama have no business imposing their morality on people of faith, but that is exactly what their oppressive mandate does.”