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Supreme Court Rules in Favor of Hobby Lobby

Aired June 30, 2014 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

CAROL COSTELLO, CNN ANCHOR: Yes, we're going to be talking a lot more about this. I want to go back out to the scene because it looks like a pretty raucous scene, Pamela Brown. Just give us a flavor of what's happening there in Washington.

PAMELA BROWN, CNN CORRESPONDENT: Yes, Carol. The energy is palpable out here. I've never seen, this term, a crowd like this out here in front of the Supreme Court. You have to put this in perspective too. This was the biggest case of the term for the Supreme Court. And this is the final day of the public session.

And here we are with this ruling, with the justices ruling in favor of Hobby Lobby. We have three contentious issues converging with this decision: abortion, Obamacare, religious freedom. And as you see behind me here, there are demonstrators. They have been speaking out, in fact, over here these are the attorneys for Hobby Lobby speaking right now about the ruling here today.

They are surrounded by demonstrators who have been out here all morning in favor of Hobby Lobby, in favor of religious freedom rights and, of course, there are many disappointed demonstrators out here as well -- those that were in favor of this contraception mandate saying that it was essential to women's health. This is very disappointing to them.

These demonstrators, the Obama administration felt like women's health, this contraceptive mandate should trump the religious freedom rights of these closely held companies.

COSTELLO: Hey Pamela.

BROWN: Yes.

COSTELLO: Pamela -- let's listen to Lori Windham, one of Hobby Lobby's lawyers for just a second.

LORI WINDHAM, LAWYER FOR HOBBY LOBBY: -- paying for contraceptives and providing alternative means for people. We don't know what the government will choose to do next but we know that the Greens are free from this unjust mandate.

The government should offer the same protections to religious ministries like the Little Sisters of the Poor, (inaudible) television network who is also asking the Supreme Court for relief today. Women like Barbara Green and Elizabeth Hahn fought for their religious freedom and today they won. Women like the Little Sisters of the Poor will continue that fight. Women's voices are heard standing up for religious freedom. This case is about the freedoms of all Americans, women and men. And it's something that all Americans should celebrate today. Thank you.

COSTELLO: All right. I want to bring in Gloria Borger. This is certainly a defeat for the Obama administration. How will they characterize this, you think?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, I think what they are probably going to do is issue some kind of regulation that we were speaking about earlier that actually says that the federal government would pay for these women's contraceptive issues rather than the Hobby Lobby, for example. So in terms of a real gap in medical coverage for these women, should they want it, I think that what you are going to see is the government sort of picking up where Hobby Lobby would leave off.

This is a blow to the administration. This is something as I was talking about earlier that's clearly going to become an issue in any presidential campaign, even in the mid-term elections. But in terms of actual impact for these particular women who work at these closely held companies, as you've been calling it, I do think that you'll end up seeing some kind of a regulation issued from the administration so they don't have a gap in their coverage.

COSTELLO: All right. We're going to talk a lot more about this after a break. I'll be right back.

(COMMERCIAL BREAK)

COSTELLO: All right. CNN has just learned that the U.S. Supreme Court has ruled in favor of Hobby Lobby in a 5-4 decision. I'll read part of that decision now. The Supreme Court ruled today that closely held companies cannot be required to pay to cover some types of contraceptives for their employees.

Now those closely held companies -- that means a family owns the company, not a whole bunch of different people. Like the Green family owns Hobby Lobby. They are Evangelical Christians and they make no bones about it. They run their business in a Christian way. They close on Sunday. They play religious music in their stores. Needless to say, Hobby Lobby is quite happy about this.

Pamela Brown is at the U.S. Supreme Court. She has one of their attorneys with her. Take it away Pamela.

BROWN: That's right. With us today is Lori Windham, she's the attorney for Hobby Lobby. She's here to share her reaction to today's ruling in favor of Hobby Lobby, the company that you've been representing Lori in this highly contentious fight that's garnered a lot of attention. Tell me what your reaction is.

WINDHAM: We are thrilled with the courts decision today. We think this is a great day for religious freedom. The court reaffirmed that American families don't give up their constitutional right to religious freedom just because they open a family business.

BROWN: Lori, when I talked to you before, I remember you telling me the Greens, the owners of Hobby Lobby, they didn't come to this fight, the fight came to them. And what a fight it has been for them.

WINDHAM: Absolutely. Yes, it certainly has. This wasn't something the Greens wanted to do, taking on the federal government, taking it all the way to the Supreme Court. But it's something they believe they had no choice but to do.

The government was requiring them to do something that violated their faith. They've always tried to run this company according to their faith. That's why they pay their employees double minimum wage, that's why they give their employees the day off on Sundays. And so they just want to continue what they have always done.

BROWN: But Lori, let's look at the other side of this. We heard the demonstrators today saying, look, the employers should stay out of our business, that this decision will now essentially bring the employer into what should be a very private decision making process between a woman and her doctor. Now that the justices ruled that Hobby Lobby no longer has to cover four types of contraception. What do you have to say to the other side?

WINDHAM: Hobby Lobby would love to stay out of this and leave this decision to a woman and her doctor. It's the federal government that told them that they had to be involved and cover these things even though they violated the Green family's faith. What the Supreme Court said today is that government has a lot of different options before it and a lot of different ways to get these four contraceptives to these women without involving the Green family.

BROWN: And then there was the other argument too from the administration saying that essentially the Greens could have opted not to provide the health coverage for its employees if they did feel like it was a violation of their faith, these four types of contraception that they equate to abortion. And your argument to that was that they would be fined, but the administration is saying look it would have been a wash either way.

WINDHAM: We don't think it would have been a wash. The Greens have always provided excellent benefits for their employees and so they would have been paying taxes to the IRS, $2,000 per employee, plus they would have had to raise wages in order to make it even and make sure their employees came out OK. So that still would have been a substantial burden.

Obviously the Supreme Court did not buy that argument today. They found this was a burden on the Green family's religious exercise. And I think it's a very commonsense ruling. You shouldn't cut off health insurance for all your employees just to make sure that some people get four drugs.

BROWN: And we have to look at the bigger implications of this, Lori. I mean this is the justices recognizing religious freedom when it comes to closely held companies. It's the first big test of Obamacare, the enforcement of Obamacare. What about those that argue that now the flood gates will open and that what about companies who have religious objections, these closely held companies who have religious objections to providing coverage for same sex couples and that kind of thing?

WINDHAM: What Justice Alito said was that this decision was going to be narrow. That it did not mean that employers have exemptions from all sorts of things. In each case, you have to look at what the government's interest is. The government's interest could be much stronger in another case.

So the court did the right thing here. They looked at this case very narrowly. They said the government loses here. On a different day, the government might win. We'll have to see if that case happens.

BROWN: All right. Lori Windham, we'll end it there. Thank you for talking with us.

WINDHAM: Thank you.

BROWN: Carol.

COSTELLO: All right. Pamela Brown, thank you very much. Thanks to you too, Lori. She goes and celebrates further.

I got to take a break. I'll be back with much more after this.

(COMMERCIAL BREAK)

COSTELLO: All right. If you are just joining us, I want to bring you up to date. The Supreme Court has just ruled that closely held companies cannot be required to pay to cover some types of contraceptives for their employees, ending its term with a legal and political setback for a controversial part of President Barack Obama's health care reform law.

I want to head back out to the U.S. Supreme Court because Pamela Brown is standing by with a Ilyse Hogue from NARAL, an abortion rights group. This is a blow to this group as well.

BROWN: Absolutely it is, Carol. This is Ilyse Hogue as you mentioned. She is the president of NARAL Pro-Choice, America. And she has a strong reaction to today's ruling here at the high court. Ilyse, you told me that you are disappointed.

ILYSE HOGUE, PRESIDENT, NARAL: I'm extremely disappointed. What we saw today was five male justices essentially ruled that discrimination against women is not discrimination at all. In fact, their narrow judgment said that it's absolutely OK for bosses to make personal decisions for women about our health care, which we paid for with our labor and that's unacceptable.

And make no mistake as Justice Bader Ginsburg said. This is startling in its breadth. This opens a Pandora Box regardless of what the court has written to other bosses imposing their personal opinion on their workers. And that's not what we stand for. We value religious liberty but that means that I don't have to do anything I don't want to do and I don't get to tell you what to do and I think today it's a sad day for women, a sad day for religious liberty and a sad day for the Supreme Court.

BROWN: Just to recap, this ruling is basically saying that these closely held companies can be exempt from providing coverage for four types of contraception. How do you feel this will impact women?

HOGUE: I think immediately, tens of thousands of women who are employees of these companies will either be out of their birth control or will absolutely have to double pay because we already pay and that adds up at the end of the month. That adds up for these hourly wage women.

But I think the more disturbing precedent that was done today is when five male judges said this discrimination against women is not considered discrimination. And I think the application of that as we move forward is going to be very frightening.

BROWN: Ilyse, we spoke to the attorney for Hobby Lobby and she made it clear that look, we just wanted the company, Hobby Lobby, the owners who were Evangelical Christians, just want to stay out of this. They equate four types of contraception to abortion. Why do you think women's rights trump that in your view?

HOGUE: Because we live in a country that actually says if you are a corporate citizen you have to play by the rules and one of the rules is that you don't get to impose your own ideological beliefs on your employees. That's exactly what happened today, and I think it's scary. I think it's going to be a problem for us moving forward.

BROWN: And Ilyse, there are other cases in the pipeline as we speak challenging other provisions in Obamacare, and specifically, companies who are contesting coverage of all types of contraception. So will your fight continue?

HOGUE: Our fight absolutely will continue. In fact, we're calling upon Congress today to right this wrong and make sure every woman in this country has access to any kind of health care that they need.

BROWN: Ilyse Hogue -- thank you very much.

HOGUE: Thank you.

BROWN: Carol.

COSTELLO: All right. Pamela Brown, Ilyse Hogue, thanks so much.

I've got to take another break. We'll be back with much more in the NEWSROOM.

(COMMERCIAL BREAK)

COSTELLO: All right. As we've been telling you, the Supreme Court has ruled that closely held companies, companies owned by one family, religious families, cannot be required to pay to cover some types of emergency contraceptives for their employees. Of course, this is a blow to the Obama administration and as you heard from the president of NARAL, an abortion rights group, she says it's a blow to women.

Let's bring in our constitutional guy -- constitutional expert Jonathan Turley, because you said that a ruling in favor of Hobby Lobby could have ramifications. What do you see those ramifications being, now that the court has narrowed its ruling?

JONATHAN TURLEY, CONSTITUTIONAL LAW PROFESSOR: I think Justice Ginsburg is right. This is sweeping. I mean people should not get lost in the reference to closely held corporations. The other large corporations were the least likely to ask for exemptions. Closely held corporations are huge in this country and most of the businesses people relate with in their daily lives are actually small often family-owned businesses and this has a direct impact on those businesses.

And what's going to happen is we're in a situation much like we were years ago with the Heller decision when the courts recognize the individual rights to bear arms. We're still working out the details of how far that goes to the edges. That's what's going to happen here. It is a significant game-changer of sort of -- you have this theme of corporations being people too.

It's a huge blow to the Obama administration. You know, this has been an awful ten days, you know. They were previously found to be in violation of the Fourth Amendment and privacy. Then they were found to be in violation of the separation of powers. And now they have been found to be in violation of the First Amendment and the religion clauses. I mean you just don't want to get out of bed after a week like that.

COSTELLO: Well, that's a good point. Of course, Republicans are cheering this decision. We just got the statement from the RNC chairman, Reince Priebus. He says, "The fact that Americans had to bring this case in the first place reveals once again just how intrusive Obamacare is. It's a misguided one size fits all policy that not only failed to fix our health care system but has trampled on our constitutional rights.

Let's talk about that from a political perspective with David Brody. He is the chief political correspondent for the Christian Broadcasting Network. Welcome, David. Also, Gloria Borger is here, CNN's chief political analyst; and Jonathan Turley remains. So David Brody, Reince Priebus -- Republicans, conservative Republicans, are certainly cheering this ruling.

DAVID BRODY, CHRISTIAN BROADCASTING NETWORK: Well, there's no -- there's no doubt about that -- Carol. And what I would say simply is that look this is an issue. I'm having a little problem with the mike there, but this is an issue simply of religious freedom in 2016. This is a Tier A issue for people like Ted Cruz, Marco Rubio, anybody else who's going to run, Mike Huckabee -- the list goes on.

And what you saw out there at the Supreme Court today was a shot in the arm for the Evangelical movement. Look, let's be straight about this -- Carol. The Evangelical movement has been beat up in this country over the last few months, few years; whether it be culturally as it relates to same-sex marriage. There's been all sorts of issues as it relates to that.

Look, there's a woman in Washington State right now, Barronelle Stutzman. She's a florist down there. She did not want to sell flowers to a same sex couple getting married out there in Washington State. And Jonathan Turley talked these are the type of cases, issues going forward that are going to be a whole lot more prevalent and right now Evangelicals are very excited about the prospects going forward.

COSTELLO: OK. So from the Democratic side, we also got a statement from DNC statement chair, Debbie Wasserman Schultz. She says quote, "It is no surprise that Republicans have sided against women on this issue as they have consistently opposed a woman's right to make her own health care decisions."

All right. Gloria Borger, I'll let you tackle that one. So is that an effective argument?

BORGER: Well, look for the Democratic Party it is. I mean when you look at the last election, you look at one of the reasons President Obama won is that there was a gender gap which was, of course, in his favor. But what you are seeing occur on the Republican side is suddenly the Supreme Court has kind of crystallized their main political argument.

They are looking at internal poll numbers, Carol, which show that the number one issue, above just Obamacare in and of itself is this question of what they call the imperial presidency, the overreach of the Obama administration, which over-regulates your life. Obamacare has overreached -- too much into your life.

And now they are getting the kind of ratification on those issues, on things like recess appointments as Jim was talking about earlier from the Supreme Court. So it kind of plays into their midterm election playbook which is that if you don't like government, which most people don't, you have to restrain a president who is overreaching and using government way too much.

And I might also say, Carol, in reaction to this particular court decision today, what I would expect the White House to do is to try and issue some kind of regulation so that these women can be covered perhaps through some kind of health care subsidy so there isn't a large gap in their coverage, but again that would play into the narrative that the Republicans are using about governmental overreach.

COSTELLO: Interesting. I want to bring up the subject of activist judges with Jeffrey Toobin because you know you are going to be hearing a lot about that today.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, you know, activist is always in the eye of the beholder. Liberal love it when the court strike down laws like the Defense of Marriage Act and say that Congress overstepped its bounds. Conservatives love it when they strike down laws like this part of Obamacare or the Voting Rights Act as they did last year.

So, you know, everybody likes or dislikes activism depending on the result they get. Here, the conservatives liked an activist court that struck down the democratically-elected branches of government, the President's interpretation of the Obamacare law. You know, activism is always in the eye of the beholder.

COSTELLO: I think you are right about that one.

I'm going to take a break. On the other side, we're going to bring in another legal analyst of CNN, Sunny Hostin, to talk about the two female justices issued a dissent in this case. We'll parse that out when I come back. .

(COMMERCIAL BREAK)

COSTELLO: All right. We've been telling you about the Supreme Court's decision it just handed down that Hobby Lobby has won. The Supreme Court justices ruled in a 5-4 decision that narrowly held companies do not have to be forced to pay for some forms of contraceptives, in this case emergency contraceptives; of course, quite a blow to the Obama administration and Obamacare.

But I want to bring in our legal analyst Sunny Hostin and Rana Foroohar, CNN's global economic analyst and assistant managing editor for "Time Magazine". Sunny I want to start with you. The two women on the court dissented.

SUNNY HOSTIN, CNN LEGAL ANALYST: Actually the three women. And I think that's what's so remarkable. It's a robust opinion. We're talking about 95 pages. The first thing I did, of course, was go to the dissent because when you look at a 5-4 decision and all five men on the court decided in the majority well guess what, the three women on the court, Justice Sotomayor, Justice Ginsburg who penned the dissent and Justice Kagan -- all dissented and what is so fascinating when you read this dissent Justice Ginsburg writes that the decision of the majority is startling in breadth.

She thinks it's a very expansive not a narrow decision. And she also makes it very clear that this is very much a blow to women's rights. She says that in the courts view, in the majority view, that it is very clear that a corporation's religious beliefs should not necessarily outweigh thousands of women that are employed by Hobby Lobby.

COSTELLO: OK, and then as -- as far as the ramifications and how this ruling might affect businesses across the country -- I want to bring in Rana Foroohar.

RANA FOROOHAR, TIME MAGAZINE: Well, it's really interesting. I see some major implications. For starters in what it means to work for a publicly held company versus a private company. And you know, as we were hearing earlier, closely held private companies in America are not a rare thing. Most of the new jobs in this country are being created by these types of companies so your chances of working for one are pretty high.

That means that there could be very different coverage for contraception amongst women who work for public companies versus private companies. What impact that could have in a broader way, you know, is very interesting. The power of the corporation as an individual is something else at stake here.

COSTELLO: All right. We're going to be talking a lot more about this all day on CNN. Thanks to you. Thanks to both of you and thanks to you for joining me today. I'm Carol Costello.

"@ THIS HOUR WITH BERMAN AND MICHAELA" starts now.