contraceptives provided by insurance. the issue is four of the drugs available terminate pregnancy including planned b and ella known as the morning after and week after pills. president obama has defended the contraception mandate portion of the law but the administration has allowed some exceptions. >> it's good for our healthcare system in general because we know the overall cost of care is lower when women have access to contraceptive services. and listen, we recognize that many people have strongly held religious views on contraception. which is why we made sure churches and other houses of worship, they don't have to provide it. they don't have to paid for it. >> when it was announced the supreme court would hear the hop hobby lobby case yesterday, the white house put out a statement. our policy is designed to insure that healthcare decisions are

made between a woman and her doctor. the president believes that no one, including the government or for-profit corporations should be able to dictate those decisions to women. over the summer the tenth circuit court of appeals in denver ruled in favor of hobby lobby contending because it's not a publicly traded corporation hobby lobby is entitled to be ex-earth from the contraceptive mandate. the supreme court is expected to hear the case in march. >> here now are lori windom, senior counsel representing hobby lobby. and reporter from the religious news service, and fred geddes professor of law at brigham young university law school.

help us know what this is about, what is the difference between a person saying to an insurer i don't want that, and i don't want to be charged for it, and a company saying that to an insu insurer because they are providing a benefit to a group of other people who voluntarily associate with it? >> what we believe is someone does not give up their religious freedoms just because they open up a business. and we believe the green family's religious beliefs transfer over to their family-run benefit. they want to run it according to biblical principles, and they've striven to do that. they want the freedom under the law to do that. >> i notice you say family business. if this was a publicly traded business would that be a different question?

>> yes, i believe you would have a different question. here you have a different group of people who are united in their religious beliefs and they've let those religious beliefs be apparent in the way they run the cop. they are closed on sundays. they offer benefits. they start their employees 90% above minimum wage. it would be different if you have a large number of faceless, nameless shareholders who change by the day. >> professor, can companies have companies legally been allowed to tailor their following of the law's provisions based on their own religious thoughts. >> this is unprecedented. and hobby lobby may only have five owners but it has over 13,000 employees. and there is something fundamentally wrong with those employees having to bear the

costs of someone else's practice of their religion. >> when you say bear the costs, explain further how you mean? >> sure, the greens want to be excused from complying with certain provisions of the affordable care act primarily the provision of certain contraceptives without cost sharing. if they're permitted to do that their employees will have to pay for those out of their pocket. so that's a real out of pocket cost to female employees, and to female beneficiaries who are covered under their plan. >> david, hasn't the obama administration been wrestling with how to match employer demands, the law, and what the affordable care act requires thought the life of this law? >> it's been a contested policy, this particular one, and it has not had support even among some

of the administration's applies who really didn't see the need for this contraception mandate to go forward in this way. the real struggle, the interesting thing, the real struggle and debate and controversy had been over how religious specifically religious groups and institutions would be either exempt from this mandate or accommodated with this mandate. that's months, over a year for the obama administration to come around to a plan to exempt houses of worship, charities, things like this. now we have a case which is a little more black and white. this is about businesses that are not accommodated in anyway, but say they want to be treated you know almost as if they are a house of worship. again, this is not about birth control, this is about religious freedom. even more than that, it's about where the culture wars are going

to play out in our society. congress, the white house, it looks like the supreme court is the main arena. >> david, what adjustments have been made in that contraceptive requirement along the way in response? >> they have made adjustments really only for houses of worship. there were the tighter definition initially for rich groups which institutions would be exempt as houses of worship whereas religious bodies from something that they objected to on the basis of their religious teachings. that exemption was expanded, but they worked out this accommodation for other things like a catholic charity or university and evangelical university that would allow them to provide this health insurance for their employees. but a third party administrator,

it's get technical, a murder party administrator would separately provide the free contraception coverage to that employee. so the employer would not be facilitating in any way the administration says, the supplying of the free contraception health coverage. the for-profit businesses don't have that accommodation. >> we'll be talking more with these guests after a moment after a short break. this is inside story.

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instance, in interfaith marriage, call it, quoting the biblic being unequally yoked. would an employer be able to withdraw coverage of a spouse with someone, an employee doesn't share a reasonable. would someone as many religions don't approve of ibf. they don't want to cover prenatal care by someone who is pregnant by in vitro fertilization. are there limits that the religious preferences that an prosecutor can do? >> of course there are limits. this is the law thatber' talking about, the law the supreme court is going to be examining, it's a balancing test. you have to balance the damage to religious freedom against the government's interest, what it's trying to regulate on the other hand. in this case it's very strong because you're talking about

very large fines and penalties if you do not comply with this mandate and the government's interest is weak. the government has already given out many exemptions from this law as many as 109 million americans, that's a third of the u.s. population, may be on plans in 2013 that are grandfathered. that means those plans don't have to comply with the contraceptive mandate and don't have t to comply to many parts f the affordable care act. it would be different if you're talking about a different type of care, any form of discrimination. the supreme court said back in the 1980s the government had a compelling interest in elimina eliminating asia discrimination so those case was be treated differently under this law.

>> professor, would this be easier case if the owners had a blanket objection to all forms of contraception rather than carving out some and saying well, these are okay, and these are not okay? >> well, it imposes greater costs on the employees, but i really think that that is beside the point. all this talk of balancing and government interests really doesn't matter what matters is that the establishment clause the first amendment prohibits the government from imposing the costs of practicing someone's religion on other people who don't practice that religion. that really is the important issue in these cases and one that has largely been overlook overlooked. >> mm-hmm, mm-hmm. so what if hobby lobby were to in future only hire employee who is shared their religious outlook, would that be permissible under the law?

>> well, i want to be clear that hobby lobby, the green family and their family business respect their employees who are diverse and their customers, who are diverse. if you had some business in the future who wanted to engage in religious discrimination by simply not hiring someone of a different faith, those would fail. there is only one case that was attempted and it went to the appeals court, and they said it was so strong that it overcame even the employer's religious exercise. >> david gibson, who is lined up and on which side? who has been heard from on this issue, and have the cast of characters been changing? are there any surprises in who has been speaking up either for the affordable care act or the employer? >> reporter: now, i think you largely got the breakdown that you see in these culture-war issues. you've got a lot of

conservative, culture visit groups, christian conservatives, certainly, the catholic bishops have been very prominent on these cases speaking out against these cases. although it's important to note that even though i think catholics have been associated with the opposition to birth control and the opposition of this mandate that hobby lobbies, a christian owned company, and there is another company, a wood cabinet making company that is mennonite owned, you have the usual suspects, the beckett fund and freedom groups and then on the other side the american civil liberties union, and old fashion church state-separation groups that are lined up as well as planned parenthood and the abortion rights groups. it's shaping up as a standard culture war battle. and i think it's not going to be--this isn't going to be the final word on this mandate. you're going to get a lot of

cases coming out of this. >> have earlier attempts by the department of health and human services meet some of these objections have the yays and the nays been lying up, or have the religious organizations for whom these exceptions have been offered been satisfied with what the government offered? >> that's where the division has come internally. especially in the catholic world you've seen some groups, for example, the catholic hospitals around the country have said they're okay with the accommodation. some universities, some others, you know, the places, the religious institutions that are most affected by this mandate

>> welcome back to inside story. i'm ray suarez: we're talking about the hobby lobby's lawsuit against the affordable care act

birth control mandate. professor, if this company prevails in court, does everybody get to make their own rules about what they're comfortable with morally and personally in the insurance that is provided by the affordable care act? >> i think that's a grave danger that that will occur. the position that hobby lobby and the beckett fund have taken, whether it's the individual's burden is entirely a subjective judgment that they make by themselves and the government cannot question. no matter our idiosyncratic the believe, if a person simply raises her hand and says this burdens my religion, then the government has to come forward with a compelling interest and it has to show that it's protected in the least restrictive manner.

as i said at the beginning, that's unprecedented for people to be able to opt out from general laws just by raising their hands. >> lori windham, too light a burden for employers and too heavy for the government? >> i believe the burden on the employers is heavy. we don't want the government to be in the business of deciding whose religious beliefs are correct, but the burden is the rule, and the consequences of the rules. here the consequences are huge. we're looking at fines of $100 per employee per day if you provide some but not all of the services. $2,000 per employee per year if you don't provide any insurance whatsoever. and so the burden in this case is really a very large government fine. and the supreme court said back in the yoder case in the 1970s any government fine on religious exercise is going to be a

substantial burden. now if you did not have fines. if you had some other sort of regulatory mechanism that people were complying with, then the burden analysis might go a little differently. >> what if it was offered earlier to other organizations put the burden on the insurer and took contraception out of the debate between employer and employee, would that satisfy the greens? >> i can't speak to the greens specifically. i can tell you that as was discussed earlier religious groups have different feelings on this, some believe that is an acceptable that they can take. others believe that still forces them to be complicit in something that violates their religious beliefs. the courts are going to be working through that and sorting that out. >> david gibson, i know that you don't have a bird's eye seat, a look into the mind of the nine justices, but given what they've ruled on in the past, given how

they've come down on questions involving private business, private entities and religious practice, what should we be looking for when it comes to argument time? >> are you asking me to predict? because that would be a fool's errand, and i'll be in trouble for that. you're going to look for tough questioning of the obama administration. there is a case last year, the ministerial exception case that obama administration was arguing on behalf of a woman who had been fired from a lutheran church. the church said they had a right to fire her. the obama administration said this is discrimination. they lost 9-0. they lost unanimously across the board. all the justices. if they don't have a great track record on these cases. but i think there are going to be limits that court will recognize. i think the most fascinating, one of the most fascinating

aspects is how much they'll take that citizen's united case precedent that ruled two years ago that corporations had free speech rights, and how much they will apply that to religious freedom rights. that's something that was raised in the lower courts, and that's something that we really need to look for. >> oddly they've never had a court constituted this way. six catholic, three jews. not that it matters but it's an unprecedented moment. there are no protestants on the court. >> it's really a remarkable moment, but of course you have catholics and then you have catholics. they range the spectrum, reflects the catholic church these days from scalia to sot so

meyer. and this reflects the wider religious scene. you've got catholics on one side. and catholics on the other side. you've got baptists on one side and baptists on the other. it's interesting discussion. >> professor, even if a settlement could be found before march when the argument goes forward. >> well, the u.s. courts of appeal, the circuit courts have split in a variety of directions so it's really something that the supreme court needs to decide so there is consistency in the way that the mandate is applied or not applied across the country. >> if the ruling goes your way, you're saying that the affordable care act will still be okay and workable rather than a very ad hoc kind of thing. >> yes, i believe that's right. what the greens and the family businesses are asking for is a very narrow exemption from one very small part of the law. this is not going to strike down

the affordable care act or have any larger affect. >> that brings us to the end of this addition of inside story. guests, thanks a lot for being with he. the program may be over but the conversation continues. we want to hear what you think about the issues, and you can log onto the facebook page. you can send us your thoughts on twitter. our handle is aj inside story am or you can reach me directly at ray suarez news. see you next time for the next inside story in washington. i'm ray suarez.

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