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.

Activists hold signs outside the Supreme Court on March 25, 2014, as the court hears arguments in Sebelius v. Hobby Lobby.
Activists hold signs outside the Supreme Court on March 25, 2014. The court Tuesday heard arguments in Sebelius v. Hobby Lobby.

Photo by Brendan Smialowski/AFP/Getty Images

You know those ubiquitous BuzzFeed quizzes? The ones trying to help you determine what brand of peanut butter or which Game of Thrones character you are? Well it’s hard not to walk out of oral argument this morning in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius without being forced to confront a similar, but perhaps more awkward, question: What kind of contraceptive method are you?

Dahlia Lithwick Dahlia Lithwick

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

The case, which has been litigated so hard and so often in the media that my next-door neighbor yesterday expressed astonishment that it hasn’t already been decided, raises the question of whether two for-profit corporations—Hobby Lobby, a chain of arts-and-crafts stores, and Conestoga Wood, a cabinet-making company—can be exempt from the requirement under the Affordable Care Act that companies cover a range of 20 contraceptive methods and devices as part of the preventive health package they offer their workers. Hobby Lobby is owned and operated by David and Barbara Green and their three children. They employ 13,000 workers. Hobby Lobby covers the range of most FDA-approved devices, but because they believe Ella, Plan B, and two types of IUDs cause abortions, they don’t want to cover those four. Conestoga is owned by a Mennonite family that objects to covering Ella and Plan B but not the other methods.

Hobby Lobby prevailed with its religious freedom claims in the appeals courts, and Conestoga lost. Both the Religious Freedom Restoration Act (RFRA) and the First Amendment claims were on the table Tuesday, but often in something of a jumble. The cases were consolidated and argued Tuesday morning by Solicitor General Don Verrilli and Paul Clement, who argued the ACA cases before the court almost two years ago, on a spring day in 2012, when it was not—as it was Tuesday—snowing.

One thing that was immediately clear Tuesday morning: There is finally a women’s team at the high court. For most of Clement’s 45-minute argument on behalf of the two religious objectors, the only questions come from the court’s three women, Sonia Sotomayor (the patch: tenacious, hardworking, and unshakable), Elena Kagan (the pill: unobtrusive yet sneakily effective), and Ruth Bader Ginsburg (IUD: deceptively small, monstrously potent, and lasts forever). Sotomayor and Kagan in particular pound Clement about the implications of using the exacting standard of scrutiny set forth under the RFRA to assess every corporate claim that a religious preference is burdened. “Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines?” asks Sotomayor. Clement replies that contraception is unlike transfusions and vaccines because it is “so religiously sensitive, so fraught with religious controversy.” Which is, I suspect, code for “sex.”   

Kagan responds, “So one religious group could opt out of this and another religious group could opt out of that and nothing would be uniform.” And Ginsburg points out that the reason RFRA passed with such broad, bipartisan support was that Congress took out a proposed amendment that “would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions.” Au contraire, says Clement. RFRA passed broadly because it afforded such broad protections.

Kagan’s not buying it: “Your interpretation of [RFRA] would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard” and allow employer after employer to voice religious objections to sex discrimination laws and minimum wage laws and family leave and child labor laws. All of which would be subject to what she describes as this “unbelievably high test, the compelling interest standard.” Employers will, under that standard, virtually all win.

Justice Samuel Alito (morning-after pill: always in possession of the power of perfect hindsight) interrupts to ask, “In all the years since RFRA has been on the books, has any of these claims involving minimum wage, for example, been brought and have they succeeded?” Kagan retorts that the reason such cases haven’t been brought is because this kind of test has never been approved by the courts. But, she adds, “if your argument were adopted and there was a strict scrutiny standard ... then you would see religious objectors come out of the woodwork.” She throws in another concern: “And because you say you cannot test the sincerity of religion. I think a court would be, their hands would be bound when faced with all these challenges.”

Clement pivots to explain why corporations can be “persons” under the Dictionary Act and Sotomayor presses him on how “a corporation can exercise religion.” She asks, “Who determines the corporate religion? The majority of shareholders? The corporate officers? Is it 51 percent?”

Clement replies that “this line of questioning goes to a question of sincerity, and if some large corporation asserts some claim that’s going to save them lots of money, I would think that the government in those kind of cases is really going to resist the sincerity piece of the analysis.” Sotomayor replies that courts aren’t supposed to be in the business of testing religious sincerity in the first place.

Sotomayor soon introduces the “it’s not a penalty” argument, as famously urged by professor Martin Lederman. “But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than the cost of health insurance at all?” she says, meaning that employers needn’t provide insurance at all so long as they pay an arguably reasonable penalty/tax to the government. “These employers could choose not to give health insurance and pay not that high a penalty.” In an appeal to Chief Justice John Robert’s Solomonic solution to the health care cases she insists: “It’s not called a penalty. It’s called a tax.”

Roberts laughingly gives it to her: “She’s right about that …”       

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.)

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.