It Sure Looks Like the Contraception Mandate Is Doomed

Oral argument from the court.
March 25 2014 6:43 PM

Is the Contraception Mandate Doomed?

It sure looks that way after the Hobby Lobby argument.

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And even Justice “All Eyes Are on Kennedy” Kennedy (the sponge: soaks everything up) seems to agree. “Let’s assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty,” he asks. “How is the employer hurt?” Kagan questions Clement’s claim that one tenet of the Green family’s faith requires that they provide all their employees with health care while another tenet requires that they deny contraception. Sotomayor notes that, after the ACA passed, the Greens actually changed company policy to drop the contraceptives it had been covering.

Finally, Kennedy sets liberal hearts aflutter when he asks earnestly about the rights of employees and how the employer can “put the employee in a disadvantageous position.” He wonders: “The employee may not agree with these religious beliefs of the employer. Does the religious beliefs just trump?” Kagan puts it more starkly: “Congress has given a statutory entitlement to women and that includes contraception. And when the employer says no, that woman is quite directly, quite tangibly harmed.”

(An aside: Walter Dellinger wrote Monday of the sheer comedy of the arguments in Griswold v. Connecticut, when, in 1965, the nine male Justices couldn’t even say the names of the contraceptive devices at issue before them. Happy Birthday, Gloria Steinem. At least now we can say “IUD” even if we can’t afford one.)

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When Verrilli stands to defend the Obama administration, Roberts immediately allays any fear that he is undecided. Verrilli begins by quoting Justice Robert Jackson for the principle that in a pluralistic religious world, religious freedom must be bound “whenever activities begin to affect or collide with the liberties of others or of the public.” Roberts nips all that in the bud: “But that was the whole point of RFRA, to tell the courts that that is exactly what you should do unless the exception satisfies the strict scrutiny test.”

Verrilli makes the argument that “in any RFRA case, including this one, you have to consider the impact on third parties”—in this case, the employees whose freedoms are also being burdened. Justice Antonin Scalia (Depo-Provera: painful but it sure works) steps in to suggest that nothing in the text of RFRA tells the courts to worry about burdening third parties: “If they wanted you to balance the interest of the religious objector against the interest of other individuals, they made no reference to that in RFRA at all.” Then Scalia introduces the argument that may carry the day for the religious objectors: that the government can’t have a compelling interest in providing contraception because it already made so many exemptions for so many classes of employers. Kennedy is particularly overwrought that it was an agency (the Department of Health and Human Services) and not Congress that offered all those exemptions.  

Roberts offers the court’s conservatives another way to get out of this case by affording religious exemptions only to family owned, closely held corporations like the parties here, leaving the court to “await another case when a large publicly traded corporation comes in and says, we have religious principles.”

Justice Stephen Breyer (NuvaRing: slight tendency to go round and round) asks what problem Verrilli has with simply having the government provide contraception (which Scalia describes conclusively as “three or four birth controls, not all of them, just those that are abortifacient”). When Verrilli asks the court to probe when a corporation’s stated religious objection is real, Alito stops him: “Isn't that really a question of theology or moral philosophy, which has been debated by many scholars and adherents to many religions.” Alito scoffs at courts providing a “definitive secular answer to a religious and moral question.” And then Kennedy closes by asking whether, in Verrilli’s view, a for-profit corporation could be forced to pay for abortions. Roberts clarifies that one: “Isn’t that what we are talking about in terms of their religious beliefs? That they have to pay for these four methods of contraception that they believe provide abortions?”

In his (masterful, as ever) rebuttal, Clement is quick to confirm that this case is, in fact, really about abortion and that under the government’s view of the case: “If Congress says that a for-profit medical provider has to provide an abortion, RFRA doesn’t apply.” If that is what Kennedy needed to decide the case, then it’s an easy one for him to decide in favor of the religious objectors. But he can also find for the religious employers by insisting that the huge numbers of exemptions the Obama administration has handed out mean contraception coverage isn’t that important, or by saying that government-provided contraception will achieve the same goals, or, if Roberts gets his way, by deciding the case just for closely held family corporations. Any of those middle grounds will mean that the corporations win without all the drama of a Citizens United for God.

The rights of millions of women to preventive health care and workplace equality elicit almost no sign of sympathy or solicitude from the right wing of the bench today. Nor does the possibility that religious conscience objections may soon swallow up the civil rights laws protecting gay workers, women, and other minorities. Religious freedom trumps because we’re “only” talking about birth control.

As is usual for oral arguments, when it comes to asking questions, Justice Clarence Thomas goes with his own preferred method of abstinence. And no, I haven’t forgotten the chief justice. If he were a method of birth control, he would be the rhythm method. Because science, law, and doctrine may change, but he’s going to be around for a long, long, long time.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.