The Supreme Court heard arguments for two controversial challenges to the Affordable Care Act's contraceptive mandate this morning. Based on the initial consensus of reporters who were in the room, it looks like the court, as expected, is either divided on the Hobby Lobby and Contestoga challenges to the mandate, or slightly sympathetic to at least part of the challengers' arguments. Our round-up of reactions is below, but here's the short version:
- Justices Scalia, Alito, and Thomas (we assume), were broadly sympathetic to the challengers' arguments, while the three female justices — Kagan, Sotomayor, and Ginsburg were sympathetic to the government's case. The trio dominated questioning during the challengers' oral arguments. Assuming Breyer votes with the liberal wing and Roberts goes with the conservatives, that leaves Kennedy as a key swing vote.
- There are multiple questions at play here, and the court could end up with a narrower or mixed decision. Reuters, for instance, speculated that a majority could rule that corporations have a right to make religious claims, but that the contraceptive mandate itself does not merit one. The AP's initial take was simply that the court was "divided."
- As for a possible narrower ruling, the Wall Street Journal has this note:
Chief Justice Roberts appeared to tip his hand when he told Mr. Verrilli that the parade of horribles — all kinds of religious exemptions being claimed by all sorts of employers, punching holes in the uniform application of the laws — could be avoided by a ruling limited to closely held enterprises, like S corporations that pass their earnings through to their shareholders. That would leave the issue of, say, an Exxon claiming religious freedom rights to another day. Later, Justice Breyer suggested he might be open to that type of resolution.
But we'll have to wait for the actual opinion to know what the justices are really thinking.
12:03 p.m.: Reuters's initial take? "Majority of #SCOTUS justices appear likely to rule firms have right to religious claims, but ruling on merits unclear." Remember: there are multiple questions in play here. First, whether for-profit companies have the right to exercise religion, and second, whether the contraceptive mandate represents a "substantial religious burden” on those corporations.
There seems to be some consensus on this divide emerging from today's arguments.
#SCOTUS 1st take: Uphill battle for govt on if for-prof corps can bring RFRA claim; uphill battle for HL on substantial burden. Kennedy key.— Chris Geidner (@chrisgeidner) March 25, 2014
11:55 a.m.: As more reporters emerge from the arguments today, today's questioning painted a picture of a court divided among conservative and liberal lines on the case, with Justice Kennedy a probable swing.
Just left SCOTUS Hobby Lobby case. Very tough to call. Women justices came out swinging against mandate opponents. Conservatives sympathetic— Sahil Kapur (@sahilkapur) March 25, 2014
Kennedy seemed most concerned (troubled?) about threshold question of whether corporations have free exercise of religion.— Irin Carmon (@irin) March 25, 2014
Also, this happened:
Sotomayor trolled John Roberts over the penalty for disobeying the birth control rule: "It's not called the penalty, it's called the tax!"— Sahil Kapur (@sahilkapur) March 25, 2014
11:46 a.m.: Barbara Green, of the family who owns Hobby Lobby, said that she was "encouraged" by today's oral arguments in a brief statement outside of the court. Lori Windham, Senior Counsel of the Becket Fund (representing Hobby Lobby) added that she believed the Supreme Court justices were "deeply skeptical" of the government's arguments against their case.
11:40 a.m.: One more update from Kendall, on a potential swing vote:
Justice Anthony Kennedy, potentially a key vote in the case, asked Mr. Clement how the court should take into account the religious rights of employees, which may differ from the religious views of their employer.
You can read more on Kendall's report from the Wall Street Journal.
Meanwhile, Ted Cruz is talking to protesters outside of the Supreme Court building while we wait for the attorneys representing each side to emerge and give statements:
11:13 a.m.: The Wall Street Journal has more from reporter Brent Kendall, including the first question to lawyer Paul Clement, who represented the corporate challengers. According to his report, Justice Sonia Sotomayor asked the challengers if "corporations can object on religious grounds to providing contraception coverage, could they also object to vaccinations or blood transfusions?"
Justice Elena Kagan was also an active questioner, according to the WSJ. She asked, whether a decision on Hobby Lobby's favor would mean “everything would be piecemeal. Nothing would be uniform" for health care coverage if businesses could object to specific procedures on religious grounds. Unsurprisingly, Kendall added, "Justice Kagan and Justice Antonin Scalia offered conflicting views from the bench about what Congress thought it was doing when it passed the Religious Freedom Restoration Act of 1993." The disagreement seems to be over whether legislators intended the law to provide religious rights to for-profit companies.
11:05 a.m.: The Wall Street Journal has the first take on how the first half of the 90-minute session went:
"The court’s three female justices, all part of the court’s liberal wing, dominated the questioning during the first half on Monday’s 90 minute oral argument, repeatedly pressing the corporate challengers to the government’s contraception requirements."
As far as we know, we're still waiting for the second half of the oral arguments to end.
Original post: The Supreme Court is hearing oral arguments in two controversial challenges to the Affordable Care Act's contraceptive mandate this morning. Those challenges, from two for-profit companies, could change (or stop the debate) on the more than 40 challenges to the mandate making their way through the courts. We'll have a summary of the Hobby Lobby and Contestoga when they finish up later today. But for now, here's what you need to know about these cases.
What are the stakes?
The Wire's Arit John laid this out in more detail, but essentially, a broad decision from the Supreme Court could end up shifting the legal direction of not only the contraceptive mandate question, but also other issues of corporate religious freedom. Here's why.
Both Hobby Lobby and Contestoga are challenging the mandate with the assumption that for-profit companies have the right to "exercise" religion. Hobby Lobby's challenge relies on the 1993 Religious Freedom Restoration Act (which applies to non-profits and religious schools), while Contestoga went right to the First Amendment's Free Exercise Clause. If the court decides that for-profit companies do not have the right to exercise religion, a bunch of other challenges to the mandate are DOA. If they decide for the companies, other questions — like whether for-profit companies are allowed to discriminate against LGBT people, based on religious objections — could end up on the table.
But the government has two back-up questions they want the court to answer if it does decide in favor of Hobby Lobby. The Religious Freedom Restoration Act's protections could only apply if the mandate is a "substantial religious burden” on the company itself. Both companies are only challenging a subset of contraceptives: IUD's, and emergency contraceptive pills like Ella and Plan B. Their argument? In Hobby Lobby's words, the company wants the court to agree that its "religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception." But the issue of whether any of those contraceptives actually do that or not is disputed by most medical authorities. The government will argue that the mandate doesn't constitute a religious burden for the companies, in part because neither corporation has to actually do anything to directly provide those contraceptives to their employees.
Pew notes that the government has one more argument up its sleeve, even if both of the above do apply, according to the court:
Finally, the government argues, the mandate advances a compelling government interest because it is part of a comprehensive reform of the nation’s health care system, and granting the companies an exemption would deprive some Americans of important benefits provided by that reform. In this case, many women would not receive free contraceptive services, thwarting an important public health goal for the government – that all women have adequate access to effective birth control. As for RFRA’s requirement that the mandate be enforced in the least restrictive way possible, the government argues that any alternative to the insurance mandate would mean upending the ACA’s health care model (which revolves around employment-based health insurance) and replacing it with something different, a highly impractical option, according to the government.
Why did this case get to the Supreme Court anyway?
Basically, the Supreme Court took up the case because there's no consensus on the issue at the appeals level — the existing federal circuit court of appeals decisions on for-profit challenges to the mandate are split. But there's another factor: both Hobby Lobby and the federal government asked the court to make a decision. For better or for worse, both sides are hoping to see this settled once and for all.
What will we learn today?
The court will simply hear oral arguments this morning — there won't be a decision until, probably, June. But reporters will watch for who gets asked what questions, and how. It's not a perfect system, but it can help to shed some clarity on who's leaning which direction, and what issues may or may not end up in the court's opinion when it comes.
As National Journal explained, the court doesn't have to decide up or down on each issue before them. They could, for instance, issue a very broad ruling for or against the principles behind Hobby Lobby's challenge. Or, we could end up with a much narrower ruling. NJ says:
Both Hobby Lobby and Conestoga are closely held companies, controlled entirely or almost entirely by their owners. The libertarian Cato Institute suggested in a supporting brief that because these two companies are controlled by their owners, the Court could rule in their favor without setting a broader precedent that corporations in general can practice religion.
The cases in question are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius. We'll update this post when the arguments are completed with further analysis of today's proceedings.