By Helen Alvare, WSFT Founder
In the Justices’ comments, there is reason for hope, and reason for some frustration too:
1. Most commentators seem to read Justice Kennedy as skeptical of denying all conscience protection to for-profit corporations and their leadership. This is important because Justice Kennedy is widely seen as the 5th or “swing” vote necessary to give Hobby Lobby and Conestoga Wood a win on this point. The government could not explain why it would recognize the religious freedom rights of “for-profit unincorporated” businesses, and of “non-profit corporations,” but NOT of “for-profit corporations.” The Solicitor General had nothing incisive or convincing on this point.
2. Abortion was the important ghost in the room. Several Justices, including Justice Kennedy, pointed out to the Solicitor General that if the government won on what it claimed to be a purely contraceptive mandate — on the grounds that the government had definitively determined the essential elements of women’s health care — then there was nothing stopping the government from putting abortion into mandatory health care coverage. (Step aside from the fact that, as Justice Roberts pointed out, Hobby Lobby was arguing about certain drugs and devices BEING abortifacient; the Court’s question was asking about an abortion mandate from the hypothetical perspective of conceding the government’s point that emergency contraceptives and IUDs are not abortifacient). This worry from the Justices bodes well for us.
3. Disappointingly, the majority of Justices did not openly discuss WSFT’s point (in our brief) about the government’s lack of compelling state interest in a mandate which will not accomplish the government’s stated ends’ of improving women’s health and “equalizing” women with men. When the topic did arise, briefly, it seemed that the female justices were assuming that insurance coverage of contraception is a vital interest for all women. We don’t know what the Justices silent on this point believe, but the female justices — all of whom are on the very liberal wing of the Court — seemed to assume the importance of a state goal of free contraception.
4. On the matter of a religious actor’s right to claim a substantial burden on free exercise of religion. There wasn’t a great deal of dispute about whether an employer can feel burdened morally by having to provide insurance containing a specific and objectionable coverage. As we have written, the government should NOT be in the business of telling its citizens when they should or should not feel that their religious conscience is burdened. But there was pushback from the female Justices about whether, if Hobby Lobby refused to provide insurance and instead paid the $2000/employee fine under the ACA, they would be burdened. Our side argued that it’s a burden to force an employee to cease offering insurance to employees just to escape a conscience violation imposed by the government. The employees will hate being thrown out into the “insurance exchanges” to fend for themselves. But certain Justices thought that the relatively low cost per employee (versus the cost of employer-provided insurance) made the “don’t provide insurance” option a live one for Hobby Lobby.
5. Slippery slope arguments were very important: As I noted in yesterday’s comments, the government did not contend well with the Court’s “what-about-abortion” slippery slope. Our side contended better on the question of “what-floodgates-might-open” if corporations are allowed to object to laws affecting their employees (race, gender non-discrimination laws, “vaccination-coverage”, etc). But you could tell that 4-5 Justices were worried about the latter “slope.” Again, our side had the smarter responses, but the Court expressed worries still. One possible solution seemed to be Justice Roberts’ clear signaling that this case might limit its holding to smaller corporations, where it might be easier to figure out their “religious conscience.”
6. All in all, you can see that the more liberal wing of the Court is anxious not to issue a ruling that protects employers from government decisions about what constitutes “fairness” or “equality” or “nondiscrimination” or “health.” They want to leave the government with the stronger hand, and seem suspicious of religion’s willingness to observe these principles. But there is also concern, among some of the liberal and all of the conservative Justices, to not strip citizens of religious freedom when they choose to incorporate. There is also concern that the government’s argument –“we have spoken about what health care means” — has no limiting principle…. that there may be a “contraception” mandate today, but that a win for the government means that there is nothing stopping them, tomorrow, from imposing an abortion, or an assisted suicide mandate.