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Special Report

All-Star Panel: Supreme Court takes up contraceptive mandate

This is a rush transcript from "Special Report," November 26, 2013. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

LORI WINDHAM, BECKET FUND FOR RELIGIOUS LIBERTY: It would be a terrible precedent for the Supreme Court to set, to tell Americans that they give up a fundamental freedom just because they decide to open a family business and pursue the American dream.

BARRY LYNN, AMERICANS UNITED: This is not anything but an incidental infringement on a claim of religious liberty. If every company in this country has the right to exempt itself from any law it doesn't like, you no longer have a society. You kind of have anarchy.

(END VIDEO CLIP)

SHANNON BREAM, ANCHOR: ObamaCare round two headed to the Supreme Court in the spring. Let's talk about it with our panel, Juan Williams, columnist with The Hill, Nina Easton, columnist for Fortune magazine, and syndicated columnist Charles Krauthammer, author of the still number one New York Times bestseller "Things that Matter." Good to see all of you tonight.

Juan, what do you make of this? The Supreme Court has decided to weigh in on more than 70 of these cases challenging the HHS contraceptive mandate. The employers say it will violate their beliefs if they have to provide no cost of birth control and contraceptive access to their employees.

JUAN WILLIAMS, SENIOR EDITOR, THE HILL: I think it's a matter of a challenge to the idea of is a corporation a person or is it not? And in fact that's the argument being made in one of the lower court decisions that based on the high court's ruling that a corporation is to be considered a person, well then a person has religious beliefs and you must respect them.

The counterargument, of course, Shannon, is one that, listen, this is a for profit enterprise. It's not a nonprofit religious business. It's a for profit corporation and that if you allow for profit corporations to make these kinds of decisions, basically you're entering into anarchy, because I could join with Nina and Charles in a religion that says paying taxes is not within our religion.

BREAM: You could sign me up for that one too.

(CROSSTALK)

WILLIAMS: They would say it's not our religion to pay taxes federal government. Sorry.

BREAM: I think that's out there.

WILLIAMS: That would break down. And of course the politics of this is just rich because you have the Democrats saying this was about women's rights and women's preventive medicine especially, and you have Republicans on the other hand saying, we're standing with people who feel that their religious rights are being violated.

BREAM: Yeah, and Nina, the primary case is Hobby Lobby. And the Green family behind that said they founded it on biblical principles. They don't want to, their attorneys say, have to live one way on Sunday, and practice their faith there, but then when they go to work on Monday have to abandon all the things they believe in. So finding that line about religious freedom and where it balances here, that's what the justices have to decide.

NINA EASTON, COLUMNIST, FORTUNE MAGAZINE: And it turns on this question of whether a corporation is a person. And of course, that became the big thing, a big flash point in the campaign last year, the presidential campaign, where Mitt Romney said you're taxing a corporation, you're taxing people. And he was roundly condemned by that. And of course, this is going to turn on same kinds of issues that were in Citizens United, which is the court case that President Obama just hates – hates.

BREAM: Chided the Supreme Court, lied during the State of the Union address, provoking the response from Justice Alito.

EASTON: Exactly. And that case turned on corporations are like people, have political rights. So the question is with this little company, small company, it's an interesting question because it is very viscerally run by people who have beliefs. So that's what it's going to turn on. But it comes down to the problem with the command and control health care system that the president put in place, and that's why this is ending up at the Supreme Court.

BREAM: Charles, today, my inbox – as probably for you all too -- flooded with reaction from both sides of the aisle, from organizations all over the place from pro-life, pro-choice groups. And there's this constant conversation about blocking women from access of health care, but the truth is this is about who is going to pay for it. No one is saying you can't get contraception.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: No one is going to put a [inaudible] and prevent women from purchasing contraceptives. So I think that's clearly a misrepresentation, a deliberate one that the left presents as a way to scare people about this.

I think in this case you have the contaminating issue of the nature of the corporation. There are other cases coming along which don't involve corporations, which involve Catholic hospitals, Catholic schools, Catholic charities and other religious charities, where the corporate issue isn't there, but it's about the nature of religion.

And it seems to me that it is a belief of secular Americans, and particular of those who craft a law like this -- that religion is what happens on Sunday, and the rest of your life is nonreligious outside of the church. And the people who really are religious understand that that's a complete misunderstanding of what religion is.

If you're involved in a Catholic soup kitchen, you're living out your faith every day of the week in your work. And thus, if you are forced to offer contraceptive to people who work in the kitchen, you have been made to violate a principle that you believe. It's completely immoral. We can argue whether it ought to be or not, but it is clearly a tenet of the Catholic Church. And I think that really is the issue.

So when those cases, which are percolating up behind this one, the ones of the Catholic or religious institutions, I think there's going to be a much stronger impulse of the court to strike down that provision of the law as a violation --

WILLIAMS: Dr. Krauthammer, are you saying that you think the court therefore, will rule in favor of the Obama administration in this case?

KRAUTHAMMER: I say that when these cases arise, the ones involving the private corporations, it's probably, in my view, a 50/50 --

WILLIAMS: I think you're being kind.

KRAUTHAMMER: Because of the employer issue whether it is an individual or --

(CROSSTALK)

WILLIAMS: Here's the thing I would say to you. In this Hobby Lobby case, the people involved, Shannon, say it's OK. They are willing to offer contraceptive services. They object to the morning after pill. This seems to me to be willy-nilly. You're opening the door to employers saying, well you know we don't like this, but we like that.

BREAM: For people who believe that that's an abortive agent, that it can cause an abortion, and there's science that these folks cite, that's a different thing. They don't want to be funding an abortion and there are guarantees in the federal law that they won't have to do that.

(CROSSTALK)

KRAUTHAMMER: You're representing it as a trivial difference.

WILLIAMS: No, no, no. I'm saying that that's a substantive policy difference but they are imposing their perception on their employees.

BREAM: But they are not telling their employees they can't get those pills. They are just saying we don't want to pay for them.

(CROSSTALK)

KRAUTHAMMER: They are saying the law is forcing us to be complicit with what we believe under our religion is a form of murder. And that is different from contraception, which doesn't involve the destruction of an zygote, of an embryo. So if you have contraception that prevents implantation, that would be under some theologies acceptable. It's not as if I'm going to pick and choose, I like this, I don't like this.

WILLIAMS: It sounds like it.

KRAUTHAMMER: No, no, it is not. It's actually a serious principle. And for people who are serious about religion, this is not a trivial issue at all.

EASTON: But this is what happens when you federalize the health care system and you have this one size fits all system where you're picking and the government is deciding what has to be in health care policies. So this also goes to the flip side of this, the other side of this is people who have these streamlined health care policies where they don't want things like maternity care and so on, and they have these streamlined policies that are being canceled because they don't have all of those in it. So again, it's this command and control system that is essentially federalizing these explosive social issues that Washington doesn't need to be getting in the middle of them.

BREAM: Well, the court has been alternately praised and criticized based on where you're coming from for upholding ObamaCare last year. The environment has changed quite a bit. The polling has changed quite a bit.  And you have to wonder whether that's going to impact how they feel this time around. Although, it's a different issue.

KRAUTHAMMER: Also, if they strike it down it's not going to undermine the law. Had you struck down the individual mandate, ObamaCare would have collapsed because it wouldn't have a financial source and income. Here I think it would attack it at the edges, but I think in principle it's an extremely important issue.

BREAM: We shall see. Thank you all for a spirited debate.

Stick around, next up, President Obama goes Hollywood.

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