Several justices sharply questioned Obamacare’s “abortion mandate” today at the Supreme Court, and five justices – a majority of the court – appeared deeply skeptical of the controversial regulation at issue.

Chief Justice John Roberts—who turned out to be the swing vote Obamacare’s first foray at the Court—expressed strong disagreement with several of the Obama administration’s arguments about legal protections for religious companies facing a mandate to provide contraceptives against their beliefs.

And Justice Anthony Kennedy—regarded as the swing vote in this case—separately expressed concern about how the Constitution could be read to allow government agencies to determine who has religious protection from government mandates, and who does not.

During the oral argument, protesters held a rally in the snow on the court steps.

“We just want to support people’s ability to run their businesses according to those religious beliefs,” said Allison Howard, the communications director for Concerned Women for America.

“This is one of the most important cases that we’ve seen in front of the Supreme Court. Our freedom of conscience is on the line,” added Charamine Yoest of Americans United for Life.

Planned Parenthood, the nation’s leading abortion provider, also held a rally urging the high court to rule against Hobby Lobby, the plaintiff.

“I’m really just hoping that the justices see that access to birth control and reproductive health care is a fundamental human right,” said Renee Bracey-Sherman, a student and pro-choice activist. “Bosses shouldn’t be able to make a decision based on their personal beliefs to dictate what people have access to.”

At issue in the case, Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius, is a regulation issued by the U.S. Department of Health and Human Services (HHS) requiring almost all large employers that offer insurance to include coverage for several forms of birth control that can cause abortion by destroying early-stage human embryos.

Paul Clement—arguing for the plaintiffs—noted that another federal law at the center of this case—the Religious Freedom Restoration Act (RFRA)—was explicitly enacted to protect “any exercise” of a person’s religion. Federal law generally includes corporations in its definition of “person.”

The plaintiffs in this case are Christians who are committed to running their companies consistent with their faith. Much of the oral argument dealt with the federal government’s argument that nonprofit organizations (such as churches) can assert religious-liberty claims, but for-profit organizations (such as the plaintiffs in these cases) cannot.

The regulation specifically exempts churches, and the Justice Department had to explain why such allowances turn on a corporation’s profit/tax status. Justice Antonin Scalia pointed out that no Supreme Court case has ever drawn such a distinction when considering religious liberty.

 

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