The questions from members of the Supreme Court and the tenor of the oral arguments today in the Hobby Lobby and Conestoga Wood cases against the HHS mandate give observers reason to hope the high court will overturn the controversial Obamacare provision.
In court today former United States Solicitor General Paul Clement argued on behalf of Hobby Lobby and Conestoga Wood, two family businesses whose cases were consolidated before the court. Clement argued that Hobby Lobby and Conestoga are protected under the Religious Freedom Restoration Act, and that nothing in the law excludes these family businesses and their owners from religious freedom protections.
“No one should be forced to give up their constitutionally protected civil rights just to open a family business,” said Lori Windham, Senior Counsel for The Becket Fund for Religious Liberty and counsel for Hobby Lobby. “This case demonstrates in no uncertain terms that the government’s efforts to strip this family business of its religious rights represent a gross violation of the Religious Freedom Restoration Act and the First Amendment.”
Joshua Hawley, an associate professor of law at the University of Missouri and a counsel to the Becket Fund for Religious Liberty (which represents Hobby Lobby), spoke with the Daily Caller after the hearing. Hawley thinks the decision will turn based on how the Supreme Court reads the statute, rather than on Constitutional issues.
“There was virtually no discussion of the First Amendment claim,” Hawley said. “It was all based on the Religious Freedom Restoration Act.”
“The Greens [Hobby Lobby’s owners] only have an objection to 4 out of the 20 contraceptives that are mandated,” Hawley says. ”Almost nobody knows that, but it’s very important to the case. They are providing for 16 out of the 20. It’s just the abortion-inducing drugs or devices that they object to.”
Hawley also told the Daily Caller that the tenor of the questions was favorable to Hobby Lobby and HHS mandate opponents.
Having said that, after Hawley (who has litigated and clerked at the Supreme Court before) voiced caution about the perils of predictions, he revealed that “the general tenor of the questions were in our favor — and I do think the Justices were, by and large, asking the right questions in this case — and that we had the right answers for them.”
What were those favorable questions? According to Hawley, “Discussion in the courtroom focused on — does the government have another means of delivering to women the contraceptives to which the Green’s object?
Hawley said the questions focused on whether the government, if it wants to fund birth control, can do so in a way that does not violate employer rights and conscience.
Meanwhile, liberals think Justice Kennedy will decide that the HHS mandate forces companies to pay for abortions and that he will vote to overturn the mandate as a result.
“Shortly after Kennedy made this statement, Justice Kagan’s face dropped. It appeared that she’d just figured out that she would be joining a dissenting opinion,” a liberal blog said.
As I left the Supreme Court building, I ran into one of the nation’s leading advocates for reproductive justice. We smiled at each other, and then I said “Kennedy thinks this is an abortion case. The government is going to lose.”
“That’s right,” she said, shaking her head. “That’s right.”
Justice Roberts, who upset some conservatives with his Obamacare decision, appeared ready to side with Hobby Lobby:
It’s worth noting that Kennedy expressed a different concern than one offered shortly thereafter by Chief Justice John Roberts. Roberts, however, suggested that someone’s mere belief that something is an abortion is enough to trigger an religious exemption to federal law.
A USA Today report indicates the Obama administration “struggled” to say why it has the right to force organizations and businesses to pay for birth control or abortion-causing drugs.
While the justices were predictably divided along ideological grounds, it appeared that a majority of them did not want to force even for-profit corporations to offer health policies that include birth control methods they claim causes abortions.
“Isn’t that what we’re talking about?” Chief Justice John Roberts demanded of the government’s lawyer, Solicitor General Donald Verrilli.
Ed Whelan, a conservative legal expert, spoke with another conservative legal analyst who attended the Supreme Court hearing in person and came away from the oral arguments with a positive feeling and a prediction that the Supreme Court will overturn the mandate.
For what it’s worth, one person who did attend and who is very knowledgeable about the issues in the case (but who might suffer from an overly optimistic temperament) has given me his quick take. He sees a 6-3 victory for Hobby Lobby, with Kennedy and Breyer joining the conservatives on the bottom line. (Apparently, Breyer’s questions reflected his recognition that—as I discussed in this post—the accommodation that the Obama administration provided religious nonprofits is a less restrictive means—and that the HHS mandate therefore flunks RFRA.)
We shall see. I’d be very surprised and impressed if Breyer is willing to stand against the three women justices.