Supreme Women Gang Up: Sotomayor and Kagan–Hobby Lobby Should Drop Insurance, Pay Penalty and Let Employees Use Exchange

imagesDuring oral arguments in the U.S. Supreme Court on Tuesday which focused on whether the contraceptive mandate in the Affordable Care Act violates the free exercise of religion, Justices Sonia Sotomayor and Elena Kagan suggested employers who have moral objections to birth control should not provide health care coverage for their employees.

“But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than — than the cost of health insurance at all?”

Sotomayor said during the presentation by attorney Paul Clement, who represents Hobby Lobby Stores and Conestoga Wood Specialties, two companies that sued the federal government over the requirement that businesses provide health insurance plans that cover contraceptives, including abortion-inducing drugs.

“Those employers could choose not to give health insurance and pay not that high a penalty – not that high a tax,” Sotomayor said.

Clement said Hobby Lobby would pay more than $500 million per year in penalties, but Kagan disagreed.

“No, I don’t think that that’s the same thing, Mr. Clement,” Kagan said. “There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby would choose not to provide health insurance at all.

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