Aside from a cloistered monk or hermit, Justice Stephen Breyer noted, a "religious person" living in society may "have to accept all kinds of things that are just terrible for him." Quakers must pay taxes for a war they conscientiously object to, he said. Religious people against blasphemy might not like First Amendment protections of it.
Noel Francisco, also arguing for the plaintiffs, said that religious non-profits should get the same protections as churches, which are exempt from the mandate.
Justice Elena Kagan pressed him on expanding religious exemptions to charities and non-profits.
"I thought there was a very strong tradition in this country, which is that when it comes to religious exercises, churches are special," she said. If these religious protections are expanded to include "all religious people," she argued, "then the effect of that is that Congress just decides not to give an exemption at all."
Francisco also argued that because the health care law exempts many entities like small businesses from having to provide health insurance, and exempts the plans of large corporations from the mandate by "grandfathering" them in to the health care law's regulations, the government may not be able to establish a "compelling interest" for contraception coverage since so many health plans don't provide it.
Even if it does establish this interest, he continued, it has other means of facilitating access to contraception including through plans on the public exchanges that offer contraception coverage or through Title X family planning funding.
Another point of contention was the fact that, according to the IRS tax code, churches and their auxiliaries are exempt from the HHS mandate but religious non-profits, who must fill out a 990 form, are not.
The plaintiffs argued that there is no essential difference between these groups and both should receive exemptions because of their religious status. "The line they've drawn here is absurd," Clement said of the administration exempting churches and their integrated auxiliaries but not religious non-profits.
There is no substantial difference between these groups, he added; the only difference is that one group, non-profits, fills out a 990 form.
Solicitor General Donald Verrilli, arguing for the administration, said the government has a compelling interest to require employer-based contraception coverage, and every alternative that has been proposed defeats Congress' purpose of ensuring low-cost birth control access for all women without the hassle of co-pays or obtaining separate health plans for contraception.
Furthermore, he cited an Institute of Medicine report claiming that widespread contraception access was in the public good, lowering the number of unintended pregnancies and abortions.
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Chief Justice John Roberts discussed whether the mandate posed a substantial burden on the plaintiffs by "hijacking" their own health plans. Clement had argued that the government was indeed hijacking the insurance plans, saying that "it's a little rich for the government to say 'this isn't your plan, don't worry about this'."
"In other words, the Petitioner has used the phrase 'hijacking,' and it seems to me that that's an accurate description of what the government wants to do," Roberts said. "They want to use the [insurance] mechanism that the Little Sisters and the other Petitioners have set up to provide services because they want the [contraception] coverage to be seamless."
The Little Sisters "do not object to the fact that the people who work for them will have these services provided," he added. "They object to having them provided through the mechanism that they have set up because they think, you know, whether you or I or anybody else thinks, they think that that complicity is sinful."
"Can you explain why you don't see this as a hijacking?" Justice Sotomayor asked Verrilli.
Verrilli argued that the government is "ensuring" that employees "get what the law entitles them to," while "ensuring" that employers do "not have any legal obligation to pay for the coverage, to provide the coverage in any way."
The funding for the contraception coverage is done separately from the employer, he argued. The insurer is listing the coverage cost separately from the other employer-provided coverage.