The oral arguments from the Hobby Lobby contraceptive case that was heard before the US Supreme Court on Tuesday can be heard online here, where the concurrent scrolling of the transcript along with the spoken word and identification of the speaker makes things much clearer.
I listened to the whole 90-minute session. A little time was spent at the beginning on whether companies could have a religious belief but much more time on whether the government’s contraceptive mandate posed a ‘substantial burden’ on the companies, whether they had a compelling interest in doing so, and had no less restrictive means at their disposal. So the Religious Freedom Restoration Act (RFRA) of 1993 was at the heart of this case, although a related law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000 played a secondary role.
The three women justices, especially justice Sotomayor, strongly challenged the Hobby Lobby lawyer Paul Clement on the burden argument, echoing the argument made by Marty Lederman that companies always had the option of not providing health insurance to their employees and raising employee wages to compensate for that loss so that they could purchase it on the open market. Even adding the tax that they would then be liable for, the net cost to the companies would be roughly equal to what they would save by not paying for health insurance so that it would be a wash and thus not a substantial burden. Clement came close to suggesting that these companies had a ‘religious mandate’ to provide health insurance and so could not use that option but seemed to back off.
The three women justices also said that allowing Hobby Lobby the exemption it asked for would lead to all manner of other requests coming out of the woodwork, since different religions objected to vaccinations, blood transfusions, and who knows what else.
When it came time for the government to make its case, the male justices played a much more active role, and their concern seemed to be more directed as to why, if the government could make certain exemptions to the contraceptive mandate for churches and religious non-profits, for-profit companies should also not get them. The fact that the government was willing to provide such exemptions could also be interpreted as that there really was no compelling interest involved.
I thought that Donald Verilli, the Solicitor General, addressed those questions quite well, arguing that churches had historically been treated as special cases and that the employees of the religious non-profits continued to receive contraceptive benefits and that the work-around had been about how to pay for it. (This is the case of Little Sisters of the Poor that is still being adjudicated). He said that it would be unprecedented for the courts to give for-profit companies the kind of exemptions to the law that they were seeking here.
Many observers said that Clement had had a good day in the court and Verilli had not. I don’t agree. Clement is smoother but Verilli was dogged and determined and I thought that it was a draw as far as lawyerly performance was concerned.
So how will it go? Hard to tell. Justice Kennedy at the end wondered whether requiring for profit companies to comply with the government mandate might be interpreted as requiring them to also comply with a possible mandate to provide abortion services down the road, something that Clement seized upon since so many of the judges seem to be against abortion. Justice Breyer asked some fairly random questions, lending support to my view that he is not the brightest judge on the bench. Scalia was relatively quiet as was chief justice John Roberts and it was thus hard to read their intent.
I suspect that the three women justices will uphold the mandate. Breyer is uncertain because his questions were somewhat tangential. Kennedy and his abortion fixation will likely result in him voting against the mandate. This leaves Roberts. Given the hammering that he took from conservatives for being the deciding vote in upholding the Affordable Care Act two years ago, he may not want to risk their ire again. So the odds are that the government will lose the case at least 5-4, even 6-3 with a male-female split if Breyer votes with the conservatives. The only hope is that Breyer votes to uphold and Roberts and/or Scalia decide that giving for-profit companies these expanded religious rights is going too far.
But I am not hopeful.