In fact, Verrilli said, the exemptions Clement complains about are actually few and narrow. The “grandfathered” plans will add coverage over the next few years—changes in plans are frequent, and as they change the mandate will kick in. Employees of churches and so on will not be covered—but employees of religiously affiliated non-profits will get their coverage from the insurer when their employer certifies its objection to paying. Clement suggested the government could use the same method to accommodate his clients. Justice Sotomayor asked him to commit his client to complying with that procedure. “You're saying they would claim an exemption like the churches have already?” Sotomayor asked. Clement dodged: “We haven’t been offered that accommodation.” The odds are good, of course, that Hobby Lobby would refuse it—its objection is to “facilitating,” not just paying for, the disfavored contraceptives.
The lineup of the Justices isn’t complex. The four Democratic appointees—Ruth Bader Ginsburg, Stephen Breyer, Sotomayor and Kagan—seemed favorably inclined to the mandate. Roberts, Scalia, and Samuel Alito were clearly opposed to it. The only question seemed to be whether they would make a narrow exemption—only for family-held corporations—or follow Clement’s urging to extend RFRA exemptions to all. (Clement did admit that Exxon might have trouble proving its sincerity.)
Justice Kennedy seemed troubled that Clement ignored the interests of the corporations’ employees: “The employees are in a position where the government, through its healthcare plans, is—is, under your view, is—is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious—religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?”
Yes, Clement answered. “[A]n employer right now can put some burden on their rights because they have to listen to religious music or whatever. That's not as serious as a burden that's coming directly from the government.” This was a remarkable and potentially damaging claim. But Kennedy’s questions to Verrilli boded ill for the mandate. “Under your view,” he asked, “a profit corporation could be forced ... in principle to pay for abortions.”
Verrilli responded, “If it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory . . . the for-profit corporation wouldn't have an ability to sue.” Though he added, “there is no law like that on the books.” That answer, with its image of government-sponsored abortion doctors storming corporate workplaces, sounded a lot like a death-knell for the mandate.
Clement has asked the Court to note that contraception is “religiously sensitive,” and if that is part of the court’s reasoning, employers will be back asking for exemption from providing any method of contraception. Women’s health—which to me seems like a compelling interest—will be placed in a special second-place status.
But in some ways, the “government can’t provide exemptions” rule could be more damaging. It simply makes no sense to say that any attempt to tailor a statute to allow time for the economy to adjust, or to avoid burdening religion, or to exempt small businesses, will doom the whole thing. If that becomes the law, it will become prohibitively difficult for future Congresses to craft any new regulatory program.
Kagan confronted Clement with this question. He had just compared the ACA to a law requiring him to give his private Bible to someone else. “Mr. Clement, isn't that just a way of saying that you think that this isn't a good statute, because it asks one person to subsidize another person?” she asked.
I don’t doubt Clement’s clients are sincere; but they are part of a larger war against the ACA. The critique of the ACA all along has been that it is “unprecedented,” as if novelty in a government program were something the Framers frowned upon. The larger strategic aim, I think, is to make designing new programs so complex and chancy that government won’t dare try anything new.