Lyle Denniston has a summary of the oral arguments in today’s contraceptive case and you can also read the transcript here. Denniston seems to have the sense (shared by several other reports I read) that the day did not go well for the government’s case, despite the spirited question by the three women justices of the lawyers for the companies. It will be quite telling if a 6-3 verdict splits along gender lines.
Ian Millhiser also has a good summary in which he says that Justice Kennedy seemed to suggest that if the government wins this case, it might then be able to require company health insurance plans to also cover abortion. The justices also spent considerable time on the issue that Marty Lederman had written about that I summarized earlier today,
One option being bandied about is that the court may try to carve out an exemption from the ACA requirements for ‘small, private, closely-held companies’. But as Jim Newell points out, while Hobby Lobby may be private and closely held’ (whatever that means), it is definitely not small. “It is a corporation with over 500 stores, tens of thousands of employees, and several billion dollars in annual revenue.”
In reading recent court cases, I am coming to the conclusion that the most dangerous religious sympathizer on the court may not be justice Scalia but justice Alito. The seems to be extremely intent on preserving a big role for religion but he does it under the radar while Scalia hogs the attention, which in some ways makes him even more dangerous than Scalia.