Things aren't looking great for Obamacare's contraception mandate following oral arguments before the Supreme Court on Tuesday.
In arguments that were part culture war, part nitpicking, and part health policy seminar, the Court's conservative bloc staunchly defended businesses' religious rights while the three female justices led the charge from the left.
Justice Anthony Kennedy, the Court's traditional swing vote, seemed skeptical of the government's defense — and of the way the Obama administration has implemented the policy. He suggested at one point that the government's logic could be used to defend a law requiring coverage of abortion — a bad sign for the Justice Department.
The cases before the Court on Tuesday were filed by two for-profit businesses — Hobby Lobby, a chain of arts-and-crafts stores, and Conestoga, a cabinet-making company. Both companies are controlled entirely by the families that own them, and both families object to including at least some forms of contraception in their employees' health care plans.
The Justice Department has tried to block the lawsuits, arguing that corporations cannot exercise religion and that the beliefs of a company's owners don't "pass through" to the corporate form. Justice Samuel Alito led the charge against that argument Tuesday, using an example of kosher butchers who would be powerless to challenge a law that outlawed kosher butchering practices.
"If you say they can't even get their day in court, you're saying something pretty, pretty strong," Alito told Solicitor General Donald Verrilli.
Assuming the suits can go forward, the Justice Department needed to prove one of two things: that the contraception mandate is not a "substantial burden" on business owners' religious liberty; or that the imposition is OK because it's the least burdensome way to advance a "compelling" government interest.
The Court's conservatives didn't think the policy cleared that hurdle. They noted that grandfathered health plans — those that existed before the Affordable Care Act passed — had to comply with some of the law's new requirements, but not the section that includes the contraception mandate. The law requires most employers to include a set of preventive services, including contraception, in their employees' health plans without charging a co-pay or deductible.
Kennedy also honed in on a religious "accommodation" for religious-affiliated institutions like Catholic universities, under which employees still get contraception coverage but the employer doesn't have to pay for it. The Health and Human Services Department — not Congress — came up with that accommodation, and Kennedy said "it must have been because the health care coverage was not that important."
"What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? "¦ When we have a First Amendment issue of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one?" Kennedy asked.
But Kennedy also picked up on one of the female justices' main questions: Whether the burden that weakening the contraception mandate would impose on women is greater than the burden that enforcing it would place on business owners.
Justices Sonia Sotomayor and Elena Kagan questioned whether the mandate is even a mandate — and therefore whether it represents a "substantial burden" on employers. The companies could opt not to provide insurance at all, they said, and pay a fine that would cost about the same as providing health benefits — and much less than the penalty for offering coverage that doesn't include contraception.
"It's not saying you must do something that violates your religion. It's giving you a choice. You can do this thing or if this thing violates your religion you can do another thing. And that other thing is approximately the same price as the thing that you don't want to do," Kagan said.
Kagan, Sotomayor, and Justice Ruth Bader Ginsburg dominated the first half of the oral arguments, pressing Paul Clement, who argued for Conestoga and Hobby Lobby, on the other exemptions employers might seek. Justice Stephen Breyer — the Court's fourth liberal — did not speak until late in the arguments.
Kagan and Sotomayor also questioned whether granting Hobby Lobby an exemption here — and setting such a high bar for the Justice Department's defense of the contraception mandate — would open the door to a wave of other loopholes.
"So another employer comes in and that employer says, 'I have a religious objection to sex discrimination laws.' And then another employer comes in: 'I have a religious objection to minimum wage laws.' And then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test, which you say is this unbelievably high test," Kagan said to Clement.
A ruling is expected in June.