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Tape Of Hobby Lobby Case Shows Justices' Gender Differences


This week, the U.S. Supreme Court jumped into the Affordable Care Act controversy again. At issue is whether for-profit corporations citing religious objections can refuse to include contraception coverage in a basic health care plan. Joining us in our studio is NPR's legal affairs correspondent Nina Totenberg, who was at the argument. Nina, thanks so much for being with us.


SIMON: Let's begin with just the facts, ma'am, if we could.

TOTENBERG: The lead challenger in the case is Hobby Lobby, a chain of 500 arts and crafts stores that employs 13,000 people. Its owners object to covering two forms of birth control, IUDs and Morning After pills because they view them as a form of early abortion, a view that is scientifically disputed.

SIMON: Now, sometimes the audio from the most important arguments of the court are made available on the same day, but not this time. Why?

TOTENBERG: Well, the court has decided on another approach, a pretty cagey approach actually. It posts the audio at the end of each week when the case is - forgive me Scott - not really news anymore. But it is still available on a relatively timely basis.

SIMON: So, now on the day of the argument, we actually heard you. You are the best one-person repertory company I know. Nobody does Supreme Court arguments like you and I'm actually, I think, going to be a little bit disappointed to hear the actual voices of the justices in comparison to your performance, but that's what we're going to hear now, right?

TOTENBERG: That's right. There's no way that we've actually got time to deal with all of the arguments, so this just gives you a flavor. And the flavor began when the Hobby Lobby corporation's lawyer, Paul Clement, was at the lectern and the three women justices pelted him with hostile questions. Here, for example, is Justice Sonja Sotomayor.

ASSOCIATE JUSTICE SONJA SOTOMAYOR: Your claim limited to sensitive materials like contraceptives or does it include items like blood transfusions, vaccines; for some religions products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?

TOTENBERG: And here is Justice Ruth Bader Ginsburg.

ASSOCIATE JUSTICE RUTH BADER GINSBERG: Your argument seems to me would apply just as well if the employer said no contraceptives.

PAUL CLEMENT: I think that's a fair point, Justice Ginsburg.

TOTENBERG: And here is Justice Elena Kagan, probing the consequences if Hobby Lobby prevails.

ASSOCIATE JUSTICE ELENA KAGAN: So another employer comes in and that employer says I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws.

TOTENBERG: Justice Samuel Alito came to Clement's rescue and you'll hear in this exchange with Justice Kagan a reference to RIFRA, which is the Religious Freedom Restoration Act passed by Congress to enhance religious rights.

ASSOCIATE JUSTICE SAMUEL ALITO: In all the years since RIFRA has been on the books, have any of these claims involving minimum wage, for example, been brought and have they succeeded?

CLEMENT: Justice Alito, very few of these claims have been brought.

KAGAN: But with respect, Mr. Clement, I think that that's probably because the court has had a different understanding of what RIFRA does and the kind of analysis that it requires courts to perform than your arguing for in this case.

TOTENBERG: Justice Sotomayor chimed in with a different question.

ASSOCIATE JUSTICE SONJA SOTOMAYOR: How does a corporation exercise religion?

TOTENBERG: And whose religion is it, she asked. The owners, the shareholders, the executives?

SIMON: Can we deduce by all these skeptical questions that the corporation's going to lose this one?

TOTENBERG: Hardly. Just listen to this exchange. The voices are first Justice Anthony Kennedy, often the deciding fifth vote in five to four cases, followed by Chief Justice John Roberts, who cast the fifth vote to uphold the health care law two years ago. It didn't sound like it this time and the lawyer they are grilling is Solicitor General Donald Verrilli, who is defending the contraception mandate on behalf of the government.

ASSOCIATE JUSTICE ANTHONY KENNEDY: Under your view, a profit corporation could be forced to pay for abortions.

SOLICITOR GENERAL DONALD VERRILLI: In fact, the law is the opposite.

CHIEF JUSTICE JOHN ROBERTS: Is that what we're talking about in terms of their religious beliefs? Their religious beliefs say that they have to pay for these four methods of contraception that they believe provide abortions.

VERRILLI: It is their sincere belief and we don't question that, but I will say, I do think that this is important and I say it with all respect, that federal law and state law which do preclude funding for abortions don't consider these particular forms of contraception to be abortion.

SIMON: But Nina, I learned some time ago from a very wise Supreme Court reporter - I believe it's you - that you can never tell until the case is actually decided.

TOTENBERG: Well, you predict your peril, let's put it that way, and I don't feel like I want to be in any perilous situation, so I'll let the argument speak for itself and the counting of five votes speak for itself.

SIMON: NPR's legal affairs correspondent, Nina Totenberg. Thanks so much.

TOTENBERG: Thank you, Scott. Transcript provided by NPR, Copyright NPR.