In a discussion about Tuesday’s oral arguments on two cases challenging the government’s coercive mandate, one legal counsel said “it was really oral arguments“.
The courtroom was lively and the justices engaged. A couple of pieces that pinpoint key moments to light.
Kathryn Lopez aptly refers back to the ‘parade of horribles‘ to describe the women justices’ engagement of the ‘what ifs’ involved in this case. Government attorneys tried to use it in their arguments.
One of the expected themes — because it was in the Department of Justice’s brief — during the Hobby Lobby/Conestoga Wood case before the Supreme Court yesterday was the idea of a parade of horribles that would come should the companies win their religious-liberty claim. Ed Whelan has written about this here…in response to the brief. The way the argument goes is that if you let employers opt out of abortion-pill and contraception coverage next employers are going to claim religious objections to sexual-harassment laws, minimum-wage laws, Social Security taxes, and vaccine coverage.
As Ed points out:
“The fact that the Obama administration has provided an exemption from the HHS mandate for houses of worship and the so-called “accommodation” rule for religious nonprofits shows that it recognizes that the HHS mandate substantially burdens religious exercise. Nothing comparable exists for DOJ’s examples.”
The “burden” test is essential to these cases and the whole HHS birth control delivery scheme. The Religious Freedom Restoration Act (known by shorthand as RFRA) which passed with full bipartisan support under the Clinton administration, holds a two-pronged test, that government cannot restrict religious freedom unless it produces convincing evidence of a compelling reason to do so, and it is pursuing that action by the least restrictive means possible.
The government cannot pass that test on either count on the HHS birth control delivery mandate. Their attorneys have failed to produce anything approaching convincing evidence that they can pass that test, time and again, in the many lawsuits across the country over the past two years.
But here’s the real money moments in the dramatic exchanges in the high court Tuesday. Justice Anthony Kennedy was grilling the government’s attorney on whether allowing this mandate to go forward could extend government powers to authorize the compulsion to pay for abortions on a broader scale, since government attorneys had at that point conceded that IUDs can be abortifacents, and IUDs were part of the mandated coverage. The US Solicitor General (Don Verrilli) objected, saying current law “is to the contrary.”
But Kennedy persisted, saying the government was making a legal case that would permit that.
Verrilli continued to resist Kennedy’s simple hypothetical question, treating it as though he could not answer it unless there were really such a law on the books…
And then the chief justice intervened:
Chief Justice Roberts: I’m sorry, I lost track of that. There is no law on the books that does what?
Verrilli: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.
Roberts: Well, flesh it out a little more. What—there is no law on the books that does what?
Verrilli: That requires for-profit corporations to provide abortions.
Pay attention to this line of questioning.
Justice Kennedy began to speak at this point, and Chief Justice Roberts cut him off by pursuing Verrilli like a hound who has treed a raccoon:
Roberts: Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.
What Kennedy treated as hypothetical, in other words, Roberts pointed out is not hypothetical at all. It’s actual. It is this case. Hobby Lobby is an abortion case (emphasis added), and at this moment in the argument, Roberts may just have sewn up Kennedy’s vote. Not because Kennedy is morally perturbed by abortion itself; I doubt he is, much. But because he is probably very concerned, and rightly, with a regulatory mandate that forces people to violate their religious beliefs about the sanctity of life by providing and paying for abortions. Roberts spoke circumspectly about the employers’ “religious beliefs” about the drugs and devices that cause abortion, and it was right for him in this context not to say more. But they do cause abortion, and so this is, in a way that should be very important to Justice Kennedy, an abortion case.
Conclusion at this point:
Yes, this is an abortion case, and a religious freedom case, and a government-overreaching-its-authority case.
The Supreme Court will rule in June.