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Mar 27 2014

The Oral Argument in the Hobby Lobby Case

Lyle Denniston has his usual thorough recap of Tuesday’s oral argument in the Hobby Lobby case, which challenges the contraception mandate in the Affordable Care Act. I’m sure you’ll be shocked to hear that the case is likely to come down to how Justice Kennedy votes.

The Supreme Court, in a one-hour, twenty-eight-minute session Tuesday, staged something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support.

So went the argument in the combined cases of Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius. The “contraceptive mandate” in the new federal health care law, challenged under federal law and the Constitution, fared well in the first scene, and badly in the second.

But the ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind. There was very little doubt where the other eight Justices would wind up: split four to four.

This is very rare, only happening on days that end in ‘Y.’

The hearing could not have been a pleasant experience for two experienced advocates — Washington attorney and former U.S. Solicitor General Paul D. Clement, and current Solicitor General Donald B. Verrilli, Jr., making a return engagement from their encounter two years ago when the Affordable Care Act first came up for review in the Court — when each won something.

In the end, what made trouble for each of them Tuesday was the slippery slope: if we ruled for you, what would that mean for other factual scenarios or other laws that might impinge on religious beliefs?

Clement was badgered throughout his time at the lectern, especially by Justices Elena Kagan and Sonia Sotomayor, who suggested that if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions, and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable.

Early in the argument, Justice Kennedy asked non-committally how the Court could avoid the constitutional issue of the mandate’s impact on the right to freely exercise religion. Clement said it would be easy, and relying only on a federal law, the Religious Freedom Restoration Act, would clearly favor a corporate exemption to the mandate.

I suspect that is how the case will come out, with a ruling in favor of Hobby Lobby based solely on RFRA, not the Free Exercise Clause. I also wouldn’t be surprised if there ended up being a plurality ruling, perhaps with Kennedy and Roberts looking for a narrower decision that only some would join.

Although the Solicitor General had to contend mostly with questions and comments by the conservative members of the Court, he also had some difficulty when one of the Court’s moderate liberals — Justice Stephen G. Breyer — finally moved into the argument to ask why the government couldn’t just pay for the services it wanted female workers to have.

Verrilli tried to answer by saying that, if the government did try a different way to assure such services for corporate employees, the religious owners of some companies would just challenge that, too. That did not satisfy Breyer, who wanted to know “how this case fits into the broader spectrum” of how courts and government accommodate religion.

Now that’s a great idea. Birth control should be free for everyone, always, paid for by the government. That’s a better solution than making companies put it in their insurance policies (for the obvious reason that only some people have insurance paid for by their employers).

23 comments

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  1. 1
    Randomfactor

    Clement as much as told the court that if they rule his way, they’re opening the floodgates to all manner of stupid religious-exemption lawsuits. Case-by-case basis.

  2. 2
    eric

    [article]Justice Stephen G. Breyer — finally moved into the argument to ask why the government couldn’t just pay for the services it wanted female workers to have…

    [Ed's response] Now that’s a great idea. Birth control should be free for everyone, always, paid for by the government.

    Well I doubt this Congress will support anything resembling single payer, even for just one, specific type of medical service. But if SCOTUS would outline a kludge with the same effect, I bet a Democratic congress would go for it. The kludge I am thinking about goes like this:
    1. HL tells their health care provider (Kaiser, for this example) they will not pay for contraception.
    2. Kaiser then knocks some amount off the monthly per-person cost of the plans they offer to HL.
    3. Kaiser turns around and tells the USG, “hey, we have a religious exemption. You either investigate and tell us its not a legitimate exemption, or we bill you for the difference.”
    4. The USG then investigates, and either pays the difference or tells HL to take a hike on their exemption.
    5. Kaiser then provides contraception coverage to HL’s employees outside of and completely separate from HL’s corporate healthcare plan(s).

  3. 3
    Gretchen

    Now that’s a great idea. Birth control should be free for everyone, always, paid for by the government.

    I tweeted something to that effect the other day– If people are going to insist, in their bitching, on claiming that that’s what is happening anyway, we might as well give them something to bitch about!

  4. 4
    gshelley

    Did anyone actually answer the slippery slope question? Could a JW owned business refuse to pay for blood transfusions for example?
    Do HL need to show the mandate is a burden to them? As far as I can see, they could either drop insurance and pay the fine (more or less what they are paying now), or do as many business have and give the employees the money to buy on the exchange – are they arguing that if the employee bought insurance that included contraception, as they contributed directly through a subsidy, rather than indirectly through wages, this would violate their religious freedom?
    What about employees that decline the HL insurance to get insurance on the exchange with contraception. Do they still get a subsidy?
    Overall, I think Roberts and Kennedyy will bend over backwards to find any sort of reasonable justification to favour religion, especially Christianity. Alito, Scalia and Thomas probably don’t even need a reasonable justification, but it seems in this case, Roberts is convinced this is reasonable

  5. 5
    eric

    I just thought of a more direct method for Ed’s solution. ACA already lists “bronze,” “silver” etc. plans. Stick a supplementary plan on the ACA website, something like: $1/month for contraception coverage.

  6. 6
    gshelley

    That would probably require legislative action, and the Republicans aren’t going to allow anything like that to get through

  7. 7
    howardhershey

    Rather than reduce the cost to HL if they decide not to fund (some forms of) birth control that they consider to be tantamount to abortion (despite scientific evidence against that for any contraceptive offered through ACA), their insurer should charge them more to pay for the unwanted pregnancies that would be predicted to happen in in the absence of contraception in a group covering that many women of child-bearing age (using data from the number of births among the Amish). And then turn around and use that money to pay for a contraception rider to the policies if the woman (or her under 26 daughter) says it is not against *her* religious beliefs. IOW, HL would not be paying for birth control; they would be paying for the absence of birth control (children cost insurance companies money) in their policies.

  8. 8
    Reginald Selkirk

    When Verrilli began putting heavy emphasis on his point that the Court, in weighing religious claims, must take full account of the negative impact that has on “third parties” who would be affected, Justice Scalia told him that the RFRA law makes no mention of third-party interests.

    Douchenozzle.

  9. 9
    Childermass

    eric @ 5: I just thought of a more direct method for Ed’s solution. ACA already lists “bronze,” “silver” etc. plans. Stick a supplementary plan on the ACA website, something like: $1/month for contraception coverage.

    That won’t work. No one will sign up for it unless they think they are going to use it and they won’t sign up until they needed it. All this sort of defeats the purpose of insurance. No matter what kind of system you want (single payer, ObamaCare, what existed before, etc.), you must have considerably more paying in for x coverage than will actually use it in order for it to work economically.

  10. 11
    scienceavenger

    Birth control should be free for everyone, always, paid for by the government.

    You would think this would have great appeal for those who are for smaller government (less welfare for unwanted kids), balancing the budget (ditto) and reducing abortions. It’s as if they had some hidden agenda they refuse to acknowledge…

  11. 12
    D. C. Sessions

    This could all have been avoided by simply requiring that the separate rider by the insurer be available to the insured at the actuarily-determined cost difference between insuring people with and without contraception coverage, and of course pricing the policy without contraception coverage to make up the difference.

    No requirement to cite any religious principle at all. The RFRA drops completely out of the picture — or at least until the JWs and Christian Scientists get into the act.

    That way, Hobby Lobby can pay extra to exclude contraception coverage and its employees can take the rider and collect the check.

  12. 13
    eric

    @9:

    That won’t work. No one will sign up for it unless they think they are going to use it and they won’t sign up until they needed it.

    I am okay with only having women between 9-50 sign up to receive birth control pills and morning after pills. But to address your point and the unfairness of not having everyone contribute, how about this: since all the other ACA plans cover it, and because of @7′s argument that the cost is essentially negative (i.e., an insurance company loses money by not giving it), one could probably make the supplementary insurance cost $0/month and use funds collected from the other ACA plans to pay for any initial outlay. In such a case, you’re not really buying insurance so much as you are checking a box on a federal form to tell the feds whether you want to receive a particular free product they offer.

  13. 14
    Synfandel

    Now that’s a great idea. Birth control should be free for everyone, always, paid for by the government.

    Here’s an even greater idea. Health care (including birth control) should be free for everyone, always, paid for by the government. Fifty-eight countries already have it, including Canada, Australia, New Zealand, China, India, Russia, Argentina and a bunch of European countries. Bhutan has it! When will the US catch up?

  14. 15
    Modusoperandi

    Thank God God doesn’t object to boner pills. That could actually inconvience people.

  15. 16
    Pieter B, FCD

    Echoing howardhershey,

    Every dollar that our society spends on preventing unintended pregnancies produces us “savings of between two and six dollars,” according to a new report from the Brookings Institution. The savings come from averting health care, child care, and other costs associated with unplanned pregnancies. That’s a rate of return of 100% to 500%, making it one of the safest and most profitable investments anywhere.

  16. 17
    andrew

    I now believe–sincerely believe–that enforcement of copyright laws is an abortifacient, and that bittorrenting is a sacred ritual that prevents global warming. I have adopted this creed on joining my new church, the First Church of FSM, Piratist. We’re looking for new converts with legal experience and/or a nice rack, and donations are tax exempt! Should the prevailing legal winds blow some precedent our way, we, too, will be filing suit in defense of our free exercise.

  17. 18
    frog

    While the slippery slope argument makes perfect sense on paper, the reality is that no one’s going to pursue a religious exemption for anything else. This isn’t about religious feelings, it’s about telling women they’re not allowed to have sex unless they’re making babies. No one actually gives a shit about blood transfusions, because men might need them, and they aren’t an essential part of a woman’s right to engage in activities deemed morally unacceptable by assholes.

    If those other arguments were going to be brought, they’d have been brought already.

  18. 19
    Marcus Ranum

    Birth control should be free for everyone, always, paid for by the government

    I agree. Even if it means closing a CIA base, or that the DoD has to hold a bake sale to raise the $1t they are asking for, to upgrade the US nuclear arsenal. Come to think of it, nukes are “birth control” of a very crude sort. For what a few of them cost, we could pay for the whole thing… Besides, the US isn’t living up to the nuclear arms reduction provisions of SALT or the NPT ( <<<— rogue state! ) so it's a perfect opportunity to shift money from one form of population control to another.

  19. 20
    Leo Buzalsky

    In the end, what made trouble for each of them Tuesday was the slippery slope: if we ruled for you, what would that mean for other factual scenarios or other laws that might impinge on religious beliefs?

    I’ve heard others think this is a slippery slope, but I don’t see it. Slippery slopes involve one thing leading to another. What we have here isn’t that, though I see how there are similarities. What we have is an effort to apply the same rules to different scenarios, which means this is actually a struggle against special pleading. What looks like one thing leading to another would really just be challenge after challenge to rid the laws of said special pleading.

  20. 21
    Leo Buzalsky

    @18 frog

    No one actually gives a shit about blood transfusions

    Jehovah’s Witnesses do. The actually reason this likely won’t be an issue, then, is not because men need them but because Jehovah’s Witnesses don’t own any big businesses of which I am aware.

    Researching, looks like the main one would be Watchtower Bible and Tract Society of New York, Inc.

  21. 22
    raven

    Every dollar that our society spends on preventing unintended pregnancies produces us “savings of between two and six dollars,” according to a new report from the Brookings Institution.

    QFT.

    For every one dollar the feds spend on birth control, they save 3 dollars in welfare costs.

    1. So what do the exact same people who want to outlaw birth control also want to cut? Medicaid, food stamps, and welfare.

    2. This will result in a lot of forced births to mostly young, single mothers. Who will end up sick, very poor, and starving. With babies and small kids joining them.

    Fundies are perverted and anti-human.

  22. 23
    TxSkeptic

    Bryers question was either a) really dumb, because that plan essentially is a win for HL, or b) really crafty as he is baiting the conservatives with ‘you can have it your way if we can crack open the door to single payer.’

    It’s too much to hope for that Kennedy would go along, but the other 4 sane justices could conceivably call RFRA unconstitutional on the Establishment clause. That could lead the way to ALL religious exemptions being challenged and tossed out.

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