Susan Clark argues with another protester about the Affordable Healthcare Act outside the U.S. Supreme Court on June 28, 2012 in Washington, D.C.

Susan Clark argues with another protester about the Affordable Healthcare Act outside the U.S. Supreme Court on June 28, 2012 in Washington, D.C.

The Supreme Court is set to hear arguments tomorrow in what is considered the highest profile case of this term. Sebelius v. Hobby Lobby Stores touches on some of the most hot-button political and legal questions in the country right now, including the Affordable Care Act, abortion and the impact of the Supreme Court’s Citizens United ruling. The case involves two for-profit companies objecting to contraception requirements under the Affordable Care Act. The question the court will consider: Do corporations have the same religious rights as individuals? Diane and her guests preview the arguments and discuss the political and legal implications at stake.

Guests

  • Sandra Fluke Democratic candidate for California Senate District 26 and social justice attorney in Los Angeles.
  • Mark Rienzi professor of constitutional law, Catholic University of America and senior counsel, Becket Fund for Religious Liberty.
  • Joan Biskupic editor in charge for legal affairs, Reuters News. She has written biographies on Sandra Day O'Connor and Antonin Scalia.

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. For the first time since 2012, the Affordable Care Act is back in front of the Supreme Court. Two corporations are arguing they have religious objections to providing certain forms of contraception to their female employees, a requirement under the Affordable Care Act.

  • 10:07:17

    MS. DIANE REHMHere to preview tomorrow's arguments in the case: Joan Biskupic -- she's editor for legal affairs for Reuters -- Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, and, joining us from the studios of NPR West in Los Angeles, Sandra Fluke. She's democratic candidate for the California Senate District 26. I hope you'll join us in this most important discussion. Give us a call at 800-433-8850. I'd like to hear your views so you can email us to drshow@wamu.org. Follow us on Facebook or Twitter. And welcome to all of you.

  • 10:08:09

    MR. MARK RIENZIGood morning, Diane.

  • 10:08:11

    MS. JOAN BISKUPICMorning, Diane.

  • 10:08:11

    MS. SANDRA FLUKEThank you.

  • 10:08:12

    REHMGood to have you with us. Joan Biskupic, people refer to this as the Hobby Lobby case, which sounds light but is so important. Tell us why.

  • 10:08:28

    BISKUPICIt really doesn't get any bigger than this. The law that's being challenged here is the Obama-sponsored healthcare law that everybody knows was passed four years ago, just about this week. Two years ago, in the biggest case of the term at that point, the Supreme Court upheld most of it. It implicates religious rights, reproductive rights. It's got just a little bit of everything.

  • 10:08:56

    BISKUPICAnd the two sides are sides that represent pro and con on abortion rights issues, too. So we have lots going on here. And at the center of it are two for-profit companies run by people with deeply-felt religious beliefs. One is the Hobby Lobby company based in Oklahoma that you mentioned in which the family-run operation -- it is for-profit.

  • 10:09:22

    BISKUPICBut they say their religious beliefs should entitle them to an exemption from the contraceptive mandate of the Obama-sponsored healthcare law based on two things: one, a religious freedom restoration act statute that was a 1993 law adopted by Congress, but also the corporations say that they have First Amendment religious free exercise rights that also would allow it to be exempt from this requirement that they provide healthcare coverage that includes contraceptives -- four disputed contraceptives within several that would actually interfere with implantation of the embryo.

  • 10:10:07

    BISKUPICThere's a lot of science involved here that will also come into play, but mainly what it comes down to, Diane, is a question of whether these for-profit corporations can be covered by a religious exemption in federal statute and the constitution.

  • 10:10:20

    REHMThat they could actually exercise freedom of religious rights.

  • 10:10:29

    BISKUPICExactly. And this also implicates, to add one more layer, the Citizens United ruling of 2010 where the Supreme Court said that corporations have free speech rights in the campaign finance regulation area, so this is another layer of that. And actually a lot of people say, oh, well, you know, are corporations really people? But, frankly, in the law, corporations are, for legal purposes, people to an extent, but the Supreme Court has never said that for-profit corporations could be entitled to this, which makes it an even more momentous case now.

  • 10:11:02

    REHMJoan Biskupic, she's editor in charge of legal affairs at Reuters News. Turning to you, Mark Rienzi, why should these two for-profit companies, Hobby Lobby and Conestoga Wood, why should they be exempt from the contraceptive mandate?

  • 10:11:29

    RIENZIBecause Congress and the constitution say so. The bottom line is that, when you open a family business in the United States, you don't give up your religious freedom rights. You don't, when you open up a for-profit doctor's office, have to start immediately performing abortions, and you don't, when you run a for-profit pharmacy, have to start compounding drugs to make -- for lethal injections. There's no rule that says, when you make money, you give up your religious exercise. The Green family exercise their religion when they run their business.

  • 10:11:57

    REHMHow do they do so?

  • 10:11:59

    RIENZIIn all sorts of ways. They pay their employees roughly twice the minimum wage to start, $14 an hour to start. They close their business early every evening so that their workers can be home with their families. They close entirely on Sundays. They refuse to sell items related to alcohol or sublease their stores to liquor stores in bad neighborhoods because they think it's bad for people.

  • 10:12:19

    RIENZISo the Greens give up millions of dollars every year because they exercise religion while they're running their business. This is a case that's utterly unnecessary though because the government has so many other ways to achieve its goals here that there's really no reason to force the Greens to violate their religion.

  • 10:12:33

    REHMMark Rienzi, he's professor of constitutional law at Catholic University. He's senior counsel for the Becket Fund for Religious Liberty. He's one of the attorneys for Hobby Lobby. And turning to you, Sandra Fluke, you see it differently. Tell us how.

  • 10:12:59

    FLUKEI do. I want to actually just back up one step and make sure that everyone who's listening understands exactly which type of organizations we're talking about in this Hobby Lobby case, as well as the Conestoga Wood Specialties case that is its partner at the Supreme Court. First of all, this is not about houses of worship, churches or synagogues or mosques. Those types of organizations are not required under the Affordable Care Act to provide contraception for their employees.

  • 10:13:25

    FLUKEThey're completely exempt. And then, even a step beyond that, religiously-affiliated non-profits, like universities or hospitals, have also been offered a policy that balances their concerns against the health and welfare of their employees and students. So those types of organizations are removed from the process. They don't need to use their money or their resources to arrange for insurance coverage of contraception.

  • 10:13:53

    FLUKEInstead, the insurance company works directly with employees and students to make sure that they have access to the comprehensive healthcare that they need. So that's already in place in the policy and not being argued in these cases. This is about a third set of organizations, for-profit corporations that have no religious identity in the corporation itself but simply have owners who happen to have religious beliefs, absolutely, deep-held, sincere religious beliefs, but the beliefs of the owners and not a part of the mission of the organization or its identity.

  • 10:14:30

    REHMAnd if I could interrupt you for a moment, you heard Mark refer, however, to the practices of Hobby Lobby, for example, not selling anything related to alcohol, closing the stores on Sundays, being located in non-alcohol related areas. Doesn't that change the picture slightly?

  • 10:15:01

    FLUKEI don't think that it does because I agree that anyone who opens a business and goes into the marketplace does not give up their own religious rights and concerns, but they don't gain the rights to impose them upon others. So those types of business decisions that don't have a negative impact on their employees are completely within the rights of these corporations and their owners.

  • 10:15:25

    FLUKEBut where we come to the sticking point is when we need to try to balance the need for affordable health insurance access and a number of other rights for both employees and customers of business against those of the owners of the corporation. And that's where, in our society, we have to find the right balance that protects the religious beliefs of individuals but not of corporations against the health and welfare of employees and customers and the public.

  • 10:15:53

    REHMSandra Fluke, she's democratic candidate for California Senate District 26. She is a social justice attorney in Los Angeles. If you'd like to join us, 800-433-8850. Joan Biskupic, will the solicitor general make an argument about women's health and paying for effective birth control?

  • 10:16:28

    BISKUPICYes, because there are two questions here. First, the question is, can a for-profit corporation actually assert a religious free exercise right? But then, once that's addressed, the second question is whether the government has a compelling interest here to nonetheless burden those rights. And what comes into that question are some of the things that Sandra Fluke just raised in terms of women's access to healthcare, women's access to contraceptives.

  • 10:17:00

    BISKUPICAnd the government makes a very strong argument in its brief about the importance of healthcare for women employees and the importance of birth control and how much various percentages of unwanted pregnancies and health issue questions that necessarily the government wants to raise to say, yes, we have a compelling interest to require this kind of coverage.

  • 10:17:25

    BISKUPICSo those kinds of health issue questions will come up. I imagine, given that the justices have now extended the oral arguments to a total of 90 minutes, rather than 60 minutes, we're going to see a whole range. We're going to see a lot on corporate rights, religious rights, and then get down to the nitty-gritty of what this law requires of employers and what the benefits might be for employees.

  • 10:17:49

    REHMHow unusual is it that they've extended the arguments to 90 minutes?

  • 10:17:55

    BISKUPICIt's very unusual. They only do that maybe once or twice a term, and I think it's a signal of the many faceted elements that come into this. And just so your listeners know, the two people arguing are two people who we've seen up there before, Solicitor General Don Verrilli opposing Paul Clement, a former solicitor general under George W. Bush.

  • 10:18:18

    REHMJoan Biskupic, editor in charge of legal affairs at Reuters News. Short break. When we come back, we'll talk further, take your calls, your email. I look forward to hearing from you.

  • 10:19:59

    REHMWelcome back. We're talking about a case that's coming before the Supreme Court tomorrow, two corporations arguing that they have religious objections to providing certain forms of contraception to their female employees, which is a requirement under the Affordable Care Act. Here in the studio, Mark Rienzi. He is with the Becket Fund for Religious Liberty, one of the lawyers for Hobby Lobby. Joan Biskupic is editor in charge of legal affairs at Reuters News. She's written biographies on Sandra Day O'Connor and Antonin Scalia.

  • 10:20:51

    REHMJoining us by ISDN from Los Angeles is Sandra Fluke. She's Democratic candidate for California Senate District 26. She's a social justice attorney in Los Angeles. And, Mark Rienzi, returning to you, it's not all contraceptives that Hobby Lobby and Conestoga would object to. Explain which contraceptives are the problem and why.

  • 10:21:27

    RIENZISure. You're right. Hobby Lobby, for a long time, has happily provided generous benefits, including coverage for most contraceptive methods. They're evangelical Christians. They're perfectly fine with standard contraception. Their objection is only to four drugs and devices that, according to the government -- this is conceded by the government -- may interfere with implantation of an already fertilized egg. And for the Greens, they understand that to be abortion.

  • 10:21:48

    REHMOK. First of all, give me the four that they are providing now.

  • 10:21:55

    RIENZIThey are not providing them now because the lower courts have ruled that they do have the right at issue here.

  • 10:22:00

    REHMOK.

  • 10:22:00

    RIENZIBut four drugs are -- drugs and devices are Ella, which is sometimes called the week-after pill, Plan B, which is sometimes called the morning-after pill, and two types of intrauterine devices.

  • 10:22:11

    REHMAll right. And which are they providing?

  • 10:22:15

    RIENZIThey are providing all of the other forms of -- the pill, for example, and all the different variants of the pill. They have no objection to providing that.

  • 10:22:23

    REHMDo they provide condoms?

  • 10:22:25

    RIENZII don't know if condoms are ever -- condoms are not part of this mandate. I frankly don't know if condoms are generally part of an insurance package.

  • 10:22:32

    REHMInteresting. Interesting.

  • 10:22:34

    RIENZIMay I just say that...

  • 10:22:35

    REHMSure.

  • 10:22:35

    RIENZI...the point is that the Greens, when they opened the family business and they started earning money, didn't give up the right to run that business according to moral, ethical, or religious beliefs. And if you look around our society, we actually see businesses do that all the time. We saw CVS a couple of weeks ago say they won't sell cigarettes anymore. It's bad for the bottom line, but they're doing it because they have a moral belief about selling cigarettes to people. That's something that's harmful for people.

  • 10:22:59

    RIENZIStarbucks, Whole Foods, Chipotle, companies, you know, on every corner exercise moral and ethical beliefs while they earn money. The government's view here that, if you're earning money, you can't do that, if you're earning money, you can't act on these other values is actually a bad view for society. I don't think most of us want businesses around the country operating only based on the bottom line.

  • 10:23:21

    RIENZIAnd it's such an extreme view that, in this case, the government is even saying -- not just Hobby Lobby and Conestoga, but Mardel Christian, which is a related company to Hobby Lobby, it's a Christian bookstore, right. All the signs say Mardel Christian in big letters on the front, and they sell Christian books and Bibles. The idea that that business is not exercising religion is actually a little bit absurd.

  • 10:23:41

    REHMYou -- CVS and other stores in regard to cigarettes, but isn't that actually related to public health because the surgeon general and others have said they're really bad for your health?

  • 10:23:59

    RIENZIYeah, and CVS legally could make money by selling them. And if corporations only sought after profits, they'd keep selling them. But CVS has made an ethical decision that it's bad to do that. Chipotle made a decision not to partner with the Boy Scouts in Utah last year because they didn't like the Boy Scouts' stance on gay scout masters. That's clearly not an exercise of bottom line. They said it didn't match with their values. Companies do that all the time. It's a great thing that companies do that all the time. They shouldn't be prohibited from doing it just because it's religious.

  • 10:24:27

    REHMJoan Biskupic, you say this case is really about abortion.

  • 10:24:33

    BISKUPICWell, it's about many things, but I think the abortion culture wars are definitely in the backdrop of this. This is an issue that we've had around since 1973 when the Supreme Court first declared a constitutional right for a woman to end a pregnancy. And it's an issue that just has not subsided in America. I mean, both sides feel very strong -- strong about where they're at.

  • 10:25:00

    BISKUPICAnd we saw that on the anniversary of Roe just recently in January. And the two sides that have joined this case to back either Hobby Lobby or back the federal government have very strong views on abortion rights. And, in fact, part of what comes into play with the four contraceptive methods that Mark mentioned are ones that are likened by these religious owners to abortion because they could interfere with the implantation of an embryo. So it's -- that's definitely in the background, and so is the idea of who decides.

  • 10:25:34

    BISKUPICI know that many of the women who will be out in front of the court tomorrow as part of demonstrations that we'll see really have tried to cast this in terms of equal rights for women, women being able to make decisions on reproductive rights that they'd be able to make for any kind of employer, whether it be for-profit or nonprofit corporations, so I think that's in the background. And we've had abortion cases marching toward the Supreme Court, but we haven't had a full-fledged abortion rights one for about five years now.

  • 10:26:03

    REHMAnd what about the relationship to Citizens United?

  • 10:26:10

    BISKUPICOK. To remind your listeners, in January of 2010, the Supreme Court ruled in Citizens United vs. Federal Election Commission that corporations and labor unions actually had speech rights that would -- that were being infringed on by the federal government in campaign finance laws. And as part of that ruling, the court said that these corporations would have the same kind of speech rights that individuals would have.

  • 10:26:39

    BISKUPICAnd so that -- there was a lot in that ruling, but the way it's been encapsulated in terms of the public view was the idea of corporations, you know, being people. But many times before that, the Supreme Court had actually allowed fairly robust speech rights for corporations. It's just that in the campaign finance sphere, the court had allowed government, because of its own interests in fighting corruption in politics, to have regulations.

  • 10:27:09

    BISKUPICNow there are many more precedents on the books for free speech rights for corporations than there are for any kind of religious rights, which is why the stakes in this case are frankly much higher. And you saw great public reaction in January of 2010 to Citizens United. And I think if the Supreme Court were to rule that there are special religious freedom rights here for corporations, you would probably see either equal or greater reaction.

  • 10:27:34

    REHMSandra Fluke, you've made the point that this is really a slippery slope not just with providing healthcare but in lots of other areas. Talk about that.

  • 10:27:50

    FLUKEYes, absolutely. I want to go back for just a moment to address the four types of contraception...

  • 10:27:55

    REHMSure.

  • 10:27:55

    FLUKE...that these particular companies are objecting to. So their concern that these are types of birth control that could cause an abortion is not backed up by scientific fact and not what the medical community believes. But the facts of that part are not really the point. The point is that we're turning over the decision-making power on questions like that to owners of corporations.

  • 10:28:20

    FLUKEThis is your boss being able to make decisions about which types of medical procedures should or should not be covered on insurance based on their personal beliefs and not on medical or scientific fact. And for these particular corporations, there are four types of birth control that they're objecting to. For other corporations -- and there are a whole slew of cases in the courts right now -- it's all birth control.

  • 10:28:46

    FLUKEBut this goes even beyond just reproductive rights. It's about really any type of health insurance coverage, any type of healthcare service covered by insurance because there are owners of corporations who have religious beliefs who object to HIV or AIDS treatment, believing that -- and, you know, I'm paraphrasing someone else's belief here -- that that HIV and AIDS is the vengeance of a vengeful god visited upon sinners.

  • 10:29:14

    FLUKEThere are also religious beliefs who -- folks with religious beliefs that object to blood transfusions or to mental healthcare. So this could be about one's boss, one owner of a corporation, deciding that any part of health insurance coverage could be limited based purely on their personal belief. And then it even goes beyond health insurance coverage because there are a lot of nondiscrimination provisions and other types of protections for employees and for customers and the public, which could also be said to be in contrast -- or in conflict, excuse me, with a corporation's owner's belief.

  • 10:29:54

    FLUKEWe've seen in the past cases where employers have said that they didn't want to pay men and women equally because that conflicted with their religious beliefs. So these are the types of discrimination that could come into play if we said -- and this is what the court would be saying -- if we said that certain corporations and certain owners of corporations don't have to follow the same laws as the rest of us because of their religious beliefs.

  • 10:30:20

    REHMAll right. And to you, Mark, couldn't Hobby Lobby and other corporations continue to practice their own religious beliefs without somehow being heavily burdened by providing contraception of all types to employees?

  • 10:30:45

    RIENZINo, not at all because the government says to them, you will pay for the abortion drugs and devices, or we'll fine you massive, hundreds of millions of dollars a year in fines.

  • 10:30:53

    REHMSo they could opt out -- if they opted out. Is that correct?

  • 10:30:58

    RIENZIThey have to pay millions and millions of dollars in fines.

  • 10:31:00

    REHMIn fines.

  • 10:31:01

    RIENZIThey've have to cut all of their -- you know, they have thousands of employees. They'd have to cut those employees off from healthcare. It would be surprising to find out that the government thinks that's the right approach. If I could just go back to the slippery slope that was just described, a couple things about it.

  • 10:31:15

    RIENZIOne, RFRA's actually been the law -- the Religious Freedom Restoration Act has actually been the law for 20-plus years. And the government acknowledges that sole proprietorships and partnerships and lots of businesses actually can exercise religious exercise rights. But we've never seen the parade of horribles that was just described.

  • 10:31:32

    RIENZIAnd there's a reason for that. And the reason is that the Religious Freedom Restoration Act doesn't say religion always wins. It says religion wins unless the government can satisfy a test of proving it's got a compelling interest. Any time anybody's made the sort of claims that were just described, as I don't want to pay women equally to men or something like that, the government always wins those cases because it actually can prove it's got a compelling interest and this is the least restrictive means.

  • 10:31:55

    RIENZIThe difference here -- the problem for the government here is that it's so obvious that there are other ways to get these drugs to people without forcing the Greens to be involved. And to take just one, we have the healthcare exchanges open now, right. A few years ago, you might've said, well, how is the government ever going to get insurance to people?

  • 10:32:12

    RIENZIWell, we don't have to ask that question anymore because we have health insurance exchanges. And so if the government thinks that the policy offered by Hobby Lobby is insufficient in some way, well, that's OK. The government runs exchanges on which they provide people with insurance.

  • 10:32:25

    REHMSo you're saying employees of Hobby Lobby could go elsewhere.

  • 10:32:30

    RIENZIOf course. If they see the policy and say, gosh, you know, I may like this job, but I want more in my policy, it's a free country. Hobby Lobby doesn't stop anybody from getting a different policy. And if the government thinks it should be subsidized, the government can subsidize it. But there's no need to force Hobby Lobby and the Greens to pay for the abortion drug.

  • 10:32:46

    REHMIsn't there one flaw in your argument, which is that Roe v. Wade is and remains the law of the land?

  • 10:32:57

    RIENZII'm glad you brought up Roe v. Wade, and it's not a flaw at all. It's actually -- it shows why the argument is right. What Roe v. Wade says is that the government can't stop you from getting an abortion. But there were cases several years after that about whether that means you can make the government pay for your abortion. And the court said no. The court said that right in Roe is that the government has to let you do it, but you can't make the government fund it if they choose not to fund it.

  • 10:33:17

    RIENZIWell, here, we're not even talking about government funding it. We're talking about going out and finding private citizens and private businesses that disagree with it and saying, I'm going to make you be involved. The Rose v. Wade right has nothing to do with that. It doesn't include that. And, frankly, I think the court would be rather surprised if the government comes out and claims that the right includes something like that. It just doesn't...

  • 10:33:34

    REHMAre these actually abortion-inducing medications that we're talking about, Joan?

  • 10:33:43

    BISKUPICWell, I'm not equipped to say just the extent scientifically, and that is something that both sides have been backed by medical folks on. I don't think the court's going to get into it either, frankly.

  • 10:33:56

    REHMAnd you're listening to "The Diane Rehm Show." I'm going to open the phones here, 800-433-8850. First let's go to Brian in York, Penn. You're on the air.

  • 10:34:14

    BRIANHi.

  • 10:34:15

    REHMHi.

  • 10:34:15

    BRIANI'm just calling in regards to -- I think it comes back to the fundamental issue, what we constitute life. I think this president and Sandra seems to think that the country wasn't founded on the constitution. And in the constitution, we give people rights. And it's -- to think that something's not a life unless it comes out of the womb -- once it comes out of the womb, then we have to give it constitutional rights -- it comes down to personal responsibility for reproduction.

  • 10:34:51

    BRIANIf you're going to have unprotected sex, there's chances of having a pregnancy, even if you have protected sex. A condom costs 50 cents. You shouldn't have to make a business pay for something. Practicing a religious belief is a lifestyle. It's a way of life.

  • 10:35:06

    REHMAll right. All right. Thanks for your call. And to you, Joan Biskupic.

  • 10:35:13

    BISKUPICWell, I think your first caller just demonstrated why there's so much emotion around this case. It really just brings in a lot of other elements that will not be present tomorrow in that marble courtroom. But it's why people are so energized over this case, the idea of, you know, when life begins, do some of these drugs actually stop that. What is the effectiveness of the IUD? Does the IUD cause more problems than it helps?

  • 10:35:39

    BISKUPICIn fact, I think it's the Guttmacher brief that points up the effectiveness of different kinds of contraceptives and why some women would turn to these that might be more controversial. But I think that, again, the caller just proves a point of why this case is getting so much attention.

  • 10:35:55

    REHMAll right. To Tim in Palm Desert, Calif. You're on the air.

  • 10:36:02

    TIMGood morning, Diane, and thank you. I'm honored to join Sandra Fluke in this discussion. As I see it, the employer is trying to assert an ownership claim to an aspect of the employee's life. The employer cannot own the employee. Slavery was abolished a long time ago, and the employer does not own the healthcare or the insurance. Any contribution the employer makes is in lieu of wages. She earns it every day she shows up for work. If the CEO doesn't like contraception, he's not asked to use it.

  • 10:36:38

    REHMAll right. Thanks for your call. I wonder about your comments, Mark.

  • 10:36:44

    RIENZISure. I think both callers, as Joan points out, show that there are, you know, heated and real disagreements about abortion in this country, and that's no surprise to anyone. Hobby Lobby and the Greens' point is simply, hey, that's a controversial issue, and they don't want to be involved in somebody's use of certain drugs. And it seems to me that, in a free country, they ought to be allowed to go about their lives and go about their business without the government forcing them to be involved in what they understand to be abortions. In a diverse place, that ought to not be such a big deal.

  • 10:37:13

    REHMMark Rienzi, he's professor of constitutional law at Catholic University. He's senior counsel for the Becket Fund for Religious Liberty. He's one of the attorneys for Hobby Lobby. Short break here. We'll be right back.

  • 10:39:58

    REHMAnd welcome back. We'll go right back to the phones. Let's go to Rob in Raleigh, N.C. Rob, you're on the air.

  • 10:40:10

    ROBHi, how are you today?

  • 10:40:11

    REHMGood.

  • 10:40:13

    ROBI was just wondering about the rights of the employees and how it affects them, if Hobby Lobby chooses to force their religious beliefs on their employees, and an employee doesn't have the same religious belief.

  • 10:40:28

    REHMSandra Fluke, do you want to answer that?

  • 10:40:32

    FLUKEI think that gets right at the heart of the problem, that we can't look just at the religious beliefs of owners of the corporation. We have to understand that employees and customers, in other types of legal situations, have their own set of religious and moral beliefs and their own needs in their lives and need to be able to be the ones making their own personal decisions on these types of healthcare matters, rather than have their boss make those decisions for them.

  • 10:40:59

    FLUKEBut what I want to come back to is actually on the reproductive rights concerns, specifically how this type of decision, along with several other attacks on reproductive rights we've seen recently, box in employees and women specifically on how they can really actually access their rights, make those rights a reality because, yes, we have Roe v. Wade on the books. We have the right to access safe and legal abortion free of government interference. But is that something that women can actually act upon? And can they actually get other types of reproductive healthcare that they need?

  • 10:41:38

    FLUKEBecause, in addition to this attack that we're seeing at the Supreme Court of saying that employers should be able to refuse to provide comprehensive reproductive healthcare coverage on insurance, we've also seen that the exchanges in many states are restricting which types of coverage you can buy on the exchanges.

  • 10:42:00

    FLUKESo individual people, taking their own money and buying insurance on the exchange, they're not able to access insurance that covers all of the healthcare that they might require. We've also seen the government refusing to use federal and, in many cases, state dollars to provide certain types of reproductive healthcare to women who access their insurance that way. And then we've seen massive attacks on government funding for family planning and reproductive healthcare clinics.

  • 10:42:28

    FLUKESo this is about an attempt to really surround women from many sides and cut off their access to being able to afford these types of healthcare because those who are opposed to reproductive rights realize that Roe v. Wade is strong -- it's under constant attack, but it is a constitutional right -- and that the way to get to be able to actually control women's decisions on these matters is to cut off their ability to access those services so that we have a right on paper but not a right in reality.

  • 10:42:57

    REHMJoan.

  • 10:42:58

    BISKUPICYou know, she raises a couple points, and I'm wondering how they're going to play out in the courtroom tomorrow. Because what Sandra's getting to -- and what Mark had gotten to before in terms -- is kind of the second point of, what's the least restrictive means for the government to carry out its policy? And how effective might these health exchanges be as an alternative to forcing Hobby Lobby and Conestoga Wood to provide this kind of contraceptive insurance.

  • 10:43:23

    BISKUPICI'm not sure how much the government's going to want to get down into the nitty-gritty of what women can access or not. The government lawyers are making a couple claims about why this is a compelling interest for them. And it is -- you know, it's the public health issue, the equality issue for women, but also the question of that this is a comprehensive healthcare scheme that's supposed to apply to all employers.

  • 10:43:48

    BISKUPICThere are some exceptions. And I'm sure some of the Justices are going to say, you've already made some exceptions, how can you not make exceptions here? But the point that the recent dialog has gotten to is sort of, what would women's access be like and what are the restrictions? And, really, how can the government achieve its purpose for public health in an alternative way? And I think those are going to be where the rubber might meet the road, frankly.

  • 10:44:14

    REHMMark.

  • 10:44:15

    RIENZIAnd the good news about that question is that the court doesn't have to guess at what it would look like because they can see it, because the government has exempted plans covering tens of millions of people just because the policies are grandfathered. You know, if you like your healthcare, you can keep it, was the promise. And that means that plans that were in effect before 2010, which don't cover these drugs, are perfectly legal. And those plans can cover tens of millions of people. So the government knows exactly what it would look like.

  • 10:44:40

    RIENZIIt would look like people can have plans, and if there's something that they don't like in their plan, they can either go to the exchanges -- and Sandra said that the exchanges don't cover some reproductive healthcare. The some reproductive healthcare that she's talking about is just surgical abortion. Every policy on every exchange has to cover the drugs and devices here. So there's no question that if the government thinks people need access to these drugs and devices that they can go to exchanges and they can get them.

  • 10:45:04

    RIENZIAnd if the government thinks the policies on its exchanges are too expensive, they can certainly subsidize it if they want to. But one broader point about that, the discussion about the exchanges not covering surgical abortion is, I think, a relevant one because it points to the fact that the government's arguments here and the arguments we're hearing from the left here would also support a flat-out surgical abortion mandate -- in other words, a requirement that every employer pay for surgical and late-term abortions.

  • 10:45:29

    RIENZIThe same argument would justify the same mandate. Well, it's reproductive healthcare, and, sorry, you gave up your right to exercise religion or to have a conscience about everything when you went into business. There's no dividing line between the government's argument in this case and a flat-out abortion mandate.

  • 10:45:43

    REHMSo you've got abortion. You've got the Affordable Care Act. How do you think that the debate the justices will have with lawyers is going to affect the outcome of the Affordable Care Act, Joan?

  • 10:46:01

    BISKUPICWell, it really shouldn't touch the Affordable Care Act itself, beyond this mandate. You know, there's just so much still happening with that 2010 law and, you know, all sorts of controversy in Congress and still in the states about how it's going to play out. But there's only one small provision that's at issue here. So however the justices rule on this contraceptive mandate, it will not -- it will -- it could undermine the government's overall effort, but it will not actually say anything broader about the Affordable Care Act itself.

  • 10:46:34

    REHMAll right. To Jody in Silver Spring, Md. Hi, you're on the air.

  • 10:46:40

    JODYThank you so much for taking my call.

  • 10:46:41

    REHMSure.

  • 10:46:42

    JODYI wanted to make a few points. One is that I think language is critical here. Mr. Rienzi continued to say a remark about Hobby Lobby giving or providing contraceptives. They are not giving or providing anything. They are offering either an employee-paid or an employer-paid or a shared-paid insurance plan. And it is the individual that opts whether or not to access a certain kind of primary preventative care. So this is not about Hobby Lobby giving anyone anything. Employees earn their healthcare insurance.

  • 10:47:19

    JODYThe second is that Ms. Biskupic and Mr. Rienzi both are conflating this with abortion. And it has nothing to do with abortion. None of the methods, IUDs or emergency contraception have anything to do with abortion. That is now a scientifically proven fact. And every major public health association will tell you that. You can look on their websites and find the most recent science. I think it is irresponsible for a reporter or anyone else to continue to give weight to a small group of renegade people who want to conflate scientific fact with belief.

  • 10:48:03

    REHMAll right. Thanks.

  • 10:48:05

    RIENZITwo points on the claimed scientific fact there. One is the federal government agrees with the Greens here. This is in footnote five of their brief, but they say that these drugs and devices may prevent the egg from attaching and planting in the womb. They say it about the drugs. They say it about the devices. So, in this case, the Greens and the federal government agree as to the way the drugs work.

  • 10:48:28

    RIENZISecondly, in terms of the science, I would just point the listener and all your listeners to the American Journal of Obstetrics and Gynecology from 2011 which has an article saying that 57 percent of OB/GYNs nationwide believe that pregnancy begins at conception. And that makes sense. When people are trying to have a baby, they say they're trying to conceive, that it begins at conception. And the claimed scientific consensus that the caller just talked about is something that only 28 percent of OB/GYNs actually believe.

  • 10:48:55

    REHMJoan.

  • 10:48:56

    FLUKEWell, Diane, can I jump in on that actually?

  • 10:48:57

    REHMSure. Go ahead.

  • 10:48:59

    FLUKESo I don't think it's fair to say that the federal government and the Greens agree in this case. The federal government's footnote says that these birth control methods may -- emphasis on may -- prevent implantation. That's not the same thing as saying that these are methods of abortion because they're not. And that is the clear scientific consensus.

  • 10:49:22

    FLUKEThis actually, you know, it's a very minor point, but it goes back to a problematic study that came about when one of these drugs was introduced to the market. And the science at this point is much clearer. But this just comes back to my overall earlier point. We do not want our employers being the ones who decide what is or is not abortion, what is or is not the right medical choice for us to have insurance coverage of. This is the problem.

  • 10:49:49

    REHMMark.

  • 10:49:50

    RIENZIThe employer in this case is simply trying to be out of this decision. The employer doesn't want anything to do with the employee's decision about whether or not to terminate a pregnancy. It is the government that is dragging the employer in and saying, you must be here, and you must pay for it. And the government's doing it in a way that's totally unnecessary, given that the government provides insurance on the exchanges to millions of people.

  • 10:50:09

    REHMBut isn't it because the employers are defining these medications as being abortion drugs?

  • 10:50:22

    RIENZIThey view them as causing abortions the way, again, most OB/GYNs, according to the American Journal of Obstetrics and Gynecology, have the same view of when pregnancy and when life begins.

  • 10:50:30

    REHMBut don't others disagree?

  • 10:50:32

    RIENZIOh, sure. There's a disagreement. And that just goes back to my...

  • 10:50:34

    REHMHuge.

  • 10:50:35

    RIENZI...original point, which is, sure, abortion's controversial. There are disagreements. People have disagreements, and therefore the government...

  • 10:50:40

    REHMAnd as to when life when life begins.

  • 10:50:43

    RIENZIAnd as to when life begins, although scientifically I think you will never find an embryology book that will tell you anything other than human life starts at fertilization. But, ultimately, the point is it's a controversial subject. I agree. But on a controversial subject, the government shouldn't be dragging unwilling people in and saying, you have to be part of this, and if you don't, we'll crush your business. That's not the way to live in a pluralistic society.

  • 10:51:01

    REHMJoan.

  • 10:51:02

    BISKUPICYeah, I just want to make sure the caller knows that my references to abortion had to do with the culture wars that are surrounding this. Reuters has written extensively about the medical and scientific dispute in this and where all the briefs have come in and where the science is. And it's not that we're asserting in any way that these do cause abortion. I'm saying that, in terms of the cultural arguments that -- and I think it was demonstrated today -- that you've got this overlay over fights over abortion rights that have infected this whole argument.

  • 10:51:30

    REHMAll right. To John in York, Penn. You're on the air.

  • 10:51:35

    JOHNGood morning. Thanks for taking my call.

  • 10:51:37

    REHMSure.

  • 10:51:38

    JOHNI guess a lot of my comments are going to be like the last caller. I apologize for that. But I think we all have the right to our individual choices in terms of medical care and how we proceed with it. I think the root of the problems is that we've expected the employer and the government to take too active of a role in this whole process. And I understand the need to provide this from, you know, from an individual choice. But I don't see where we have the right as an employer or a government to say, this is the way you must do it.

  • 10:52:08

    REHMMark.

  • 10:52:10

    RIENZIAnd I would agree with that. I don't think the Greens and Hobby Lobby are trying to tell anybody, this is the way you must do it. They're simply saying, there are certain things that, as a matter of their faith, they can't be involved in. And, honestly, I don't know what the caller does for a living or your listeners do for a living, but I seriously doubt there are many people listening who, when they go to work, say, well, there are things that I believe are deeply wrong. But from 9:00 to 5:00, I work for the company, so I'll do those deeply wrong things. And it's just the company acting. It's not really me.

  • 10:52:34

    RIENZII don't think people actually approach their jobs like that. At least I hope they don't approach their jobs like that. And the same is true for the Greens. There are just some things they can't do. Buying abortion drugs for people is one of them. And, again, in a world where there are so many other ways to get them, this is really a controversy that shouldn't even happen.

  • 10:52:47

    REHMJoan, I'm interested in the definition of an abortion drug versus a contraceptive.

  • 10:52:56

    BISKUPICWell, part of...

  • 10:52:57

    FLUKEDiane, can I actually just add on that last point before we move on?

  • 10:53:00

    REHMAll right, go ahead.

  • 10:53:03

    FLUKEI just want to point out that the problem here is that the government is not dragging employers in on this one reproductive healthcare decision. The problem is that, as a society, we have made a decision that our health insurance coverage for the vast majority of people in this country is going to be provided through their employers and/or their educational institution. And that means they're involved, period.

  • 10:53:26

    REHMAll right.

  • 10:53:27

    FLUKEYou can't take particular healthcare decisions about one drug or one type of operation or procedure and say that that's one where the employer should be able to step away from that decision. If we have an employee- and employment-based health insurance system, if we don't have single payer, then this is how we are going to have to counter these decisions.

  • 10:53:45

    REHMAll right. And you're listening to "The Diane Rehm Show." Joan.

  • 10:53:51

    BISKUPICWell, I can tell you that the Supreme Court has never defined when life begins. And I'm not going to try, for sure. And the justices will not, in this case. And, in fact, there are -- as I said, there's just a lot going on.

  • 10:54:03

    REHMSo how are they going to...

  • 10:54:05

    BISKUPICBecause the actual question...

  • 10:54:06

    REHM...argue and decide this case?

  • 10:54:09

    BISKUPICRight. This conversation that we're all having now will be much more interesting than what's going to happen from -- between the two lawyers at the lectern. But it will implicate a lot of what we've been talking about in terms of reproductive rights and exactly what these devices and pills actually do. But the question...

  • 10:54:24

    REHMBut does it come down to whether a corporation can exercise religious rights and impose those rights on its employees?

  • 10:54:39

    BISKUPICYes. But the court will start out with the presumption that these are valid religious rights and that these two parties have good reason to believe -- that they have sincere beliefs to object to these devices and drugs. So they won't have -- they don't have to prove in the courtroom that these drugs and devices do what they believe they do, even though the science might say otherwise.

  • 10:55:01

    REHMRight, right.

  • 10:55:02

    BISKUPICThey're going to go right to the much more legalistic but very important question about whether the Religious Freedom Restoration Act and the Constitution's Free Exercise clause would it allow them an exemption as for-profit corporations. Now, I've spent a lot of time saying about how big this is, how important this is.

  • 10:55:21

    BISKUPICBut there are ways that the court could actually go narrower and actually look at the owners of these companies and look at their religious beliefs rather than -- as individuals rather than as corporations. So there are ways that they can -- the justices can go narrower than we've been speaking. But the one thing I want to make clear is they will not define when life begins in this case.

  • 10:55:41

    REHMMark.

  • 10:55:42

    RIENZII agree. That's exactly right. They won't define it. They don't have to because the government has conceded that the drugs act the way the Greens say they act. Ultimately, this case is about whether the government can pursue sort of an aggressive scorched-earth policy that says, this is not an issue on which you're allowed to disagree or opt out or say, hey, I want to stay away from that. It's the same aggressive policy that had the administrating dragging the Little Sisters of the Poor to the Supreme Court trying to make them sign forms about it.

  • 10:56:07

    RIENZIAnd it's part of a broader approach of saying, it will no longer be OK to say, hey, that's controversial. I want nothing to do with it. And instead, the government will say, you're going to be part of it, and you're going to be involved. And if you won't, we'll crush you with fines. That's the government's approach here, and it's clearly wrong.

  • 10:56:22

    REHMMark Rienzi, he's professor of constitutional law at Catholic University. He is one of the lawyers for Hobby Lobby. Joan Biskupic, editor in charge of legal affairs at Reuters. And Sandra Fluke, she's Democratic candidate for California Senate District 26, social justice attorney in L.A. I'm going to be fascinated to hear those arguments tomorrow, as I'm sure our listeners will. Thanks for listening today, and I'm Diane Rehm.

  • 10:57:07

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Denise Couture, Susan Casey Nabors, Rebecca Kaufman, Lisa Dunn, Danielle Knight and Allison Brody. The engineer is Toby Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts and podcasts. Call 202-885-1200 for more information. Our email address is drshow@wamu.org. And we're on Facebook and Twitter. This program comes to you from American University in Washington D.C. This is NPR.

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