Hobby Lobby went to the Supreme Court yesterday as part of the craft company's ongoing quest to deny its female employees Affordable-Care-Act-mandated birth-control coverage. And the women on the bench were, as my mother would say, Not Impressed.
Justices Ginsburg, Kagan, and Sotomayor repeatedly questioned the arguments of those employers who wish to deny their female employees their mandated coverage of four methods of contraception.
That said: There are six other Supreme Court justices, all of them men. The two whose votes might swing with the women in question, Breyer and Kennedy, apparently didn't ask anything that revealed their stances definitively. Interestingly for the ex-law students among you, it seems like they didn't focus too much on the lunatic issue that was so extensively briefed: whether or not corporations could hold religious rights. Instead they went straight for the heart of this strange artichoke.
Per Slate's Dahlia Lithwick, under the cheery headline, "It Sure Looks Like the Contraceptive Mandate is Doomed":
"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."
Jeffrey Toobin at the New Yorker points out that (contrary to my pessimism yesterday) Justice Kagan brought up the rights of women quite directly in her questions:
"Isn't that just a way of saying that you think that this isn't a good statute, because it asks one person to subsidize another person?" she asked. "But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, 'No, I don't want to give that,' that woman is quite directly, quite tangibly harmed."
At Supreme Court nerdhub SCOTUSblog, Amy Howe holds out a miniature Zippo lighter of hope that Justice Kennedy was persuaded by this argument, before quickly snuffing it out again:
Significantly, that argument seemed to carry at least some weight with Justice Anthony Kennedy, who earlier in the argument had expressed concern that an employer's religious beliefs could trump the rights of female employees. But other Justices were skeptical, asking Verrilli to identify language in RFRA that would even allow courts to consider the interests of the female employees.
Those "other Justices there" are Alito, Scalia, and Chief Justice Roberts, all of whom were indeed "skeptical" for reasons I'm sure they'll enumerate in their opinions.
Most dishearteningly, as Lithwick points out, Kennedy did ask about the Big Bad Voldemort in the room, the spectre of abortion:
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?"
Of course, as Verrilli points out, the present law doesn't require anybody to pay for anybody's abortions. But it's certainly a bad sign that it came up.
[Photo via AP.]
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