This column by ACRU Senior Legal Analyst Ken Klukowski was published March 25, 2014 on Breitbart.com.
In one sentence, Justice Anthony Kennedy signaled he may vote to strike down Obamacare’s so-called “abortion mandate,” suggesting he may form the crucial swing vote in delivering a body blow to the president’s signature legislative achievement.
“What kind of a constitutional structure do we have if Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” Kennedy asked.
It’s a question that cuts to the core of Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius, two consolidated cases over whether the government can force a private business to provide “preventive care” that includes 24 forms of birth control, four of which can cause an abortion.
The Christian families who own the two companies in these cases believe that life begins at conception. Yet violating the mandate from the Department of Health and Human Services (HHS) carries an annual penalty of $36,500 per employee. The Becket Fund for Religious Liberty and the Alliance Defending Freedom have taken these two cases (out of roughly 100 lawsuits filed against this mandate) all the way to the Supreme Court, arguing the regulation violates both the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment of the U.S. Constitution.
Former U.S. Solicitor General Paul Clement, arguing for the plaintiffs, began, “When a federal government agency compelled employers to provide something as religiously sensitive as contraception, it knew that free exercise and RFRA claims would soon follow.”
He went on to quote RFRA’s language applying its protections to all federal statutes and regulations unless Congress specifically provides otherwise, both those already on the books and those to be enacted in the future. Congress later broadened RFRA to protect “any exercise” of religion, unless the government can show the burden on faith is the least restrictive means to accomplish a truly compelling public interest. This test is called “strict scrutiny” in constitutional law, an extremely demanding standard that few government actions survive.
The liberal justices relentlessly pressed Clement, with Justice Sonia Sotomayor asking whether these objections could also extend to refusing blood transfusions, vaccines, or matters as simple as “products made of pork.”
Justice Elena Kagan objected to Clement’s claim of the broad reach of RFRA, asking about employers who say, “I have a religious objection to discrimination laws … [or] minimum wage laws; and then another, family leave [laws]; and then another, child labor laws.”
Clement countered that opponents of religious liberty have always claimed that religious exemptions would lead to a “parade of horribles” such as Kagan described. If this law put the nation “on a collision course, I think we would have seen the collision already.”
Quoting retired Justice Sandra Day O’Connor, Clement said the Supreme Court’s prior cases showed federal courts can “separate the sheep from the goats” to vindicate religious beliefs without imagining all sorts of beliefs that are either extremely unusual or simply nonexistent.
Sotomayor was not done. “How does a corporation exercise religion?” She acknowledged organizations can speak, but did not see the First Amendment connection to faith. Clement responded with cases where various churches and religious groups had expressed the right to free exercise of religion, where the Court did not question whether those corporations could raise such issues.
Sotomayor also pointed out that organizations have the option of dropping all insurance coverage and paying $2,000 per employee, per year, for violating what is called the ACA’s employer mandate. Clement objected that the Green family–owners of Hobby Lobby–consider it a form of Christian ministry to provide healthcare for their employees. He also said this was a choice for Hobby Lobby of between paying a $475 million penalty for violating the abortion mandate or a $26 million penalty for violating the employer mandate.
“It’s not called a penalty. It’s called a tax,” Sotomayor insisted.
“She’s right about that,” Chief Justice John Roberts added, evoking both laughter and clenched teeth. Roberts’ vote that the individual mandate (requiring people to buy insurance) was a tax instead of a commercial regulation is what saved the entire 2,700-page ACA from being declared completely unconstitutional in the 2012 case NFIB v. Sebelius.
Roberts’ statement–ignored in most news reports–is enormously important for various political and legal reasons, in that Roberts is now joining the liberal justices to say that the employer mandate, too–one of the biggest provisions in the ACA–is likewise a direct tax imposed by Obamacare.
Justice Antonin Scalia vigorously pushed back against the notion that businesses paying a $26 million penalty to exercise their conscience is a free choice. If Hobby Lobby and Conestoga pay the tax or penalty for not providing insurance, they still must also increase wages so that their workers can buy their own healthcare, or they will lose employees. “It’s absurd to say [healthcare] comes out of nowhere.”
Clement also attacked the Obama administration’s argument that nonprofit corporations can cite RFRA protection, but not for-profit businesses. He noted that “conscience clauses … allow medical providers, including for-profit medical providers, not to provide abortions.” If the Department of Justice’s (DOJ’s) argument is right, then government could compel abortions even over providers’ religious beliefs.
Kennedy did say one thing in the Obama administration’s favor during Clement’s argument, however. He repeatedly asked Clement if facts later reveal that Hobby Lobby’s savings by dropping insurance altogether would be greater than $26 million, whether it would be a net benefit to the company and change the outcome of the case. Clement explained that it would not just be $26 million, because Hobby Lobby would also have to give employees increased wages to buy their own insurance, and also their failure to provide healthcare would impede their ability to hire and retain good workers. It was not clear whether Kennedy was satisfied with that answer.
Then came the federal government’s turn. Representing Obama, U.S. Solicitor General Donald Verrilli from DOJ began by quoting an old case by Justice Robert Jackson, speaking of the “limitations which of necessity bound religious freedom” for our society to function.
Roberts cut him off, interjecting, “That’s a statement that is inconsistent with RFRA, isn’t it? The whole point of RFRA is that Congress wanted to provide exceptions for the religious views [of] proprietors, individuals.” Roberts seemed to reject the central premise to DOJ’s argument. And, in the next 45 minutes, there was never a moment where Verrilli seemed to win back Roberts’ vote.
Justice Samuel Alito also indicated he was going against the administration. Verrilli argued that forcing an employer to provide abortion-related coverage is not a “substantial burden” on their faith, saying that a religious burden “has got to be more strenuous than that,” such as threatening a religious person with jail time.
Although Verrilli said making such an assessment is a “difficult question,” Alito shot back, “It is a religious question and a moral question. And you want us to provide a definitive secular answer to it?”
Scalia also took a swing at DOJ. Verrilli argued that for-profit businesses like Hobby Lobby cannot claim religious liberty, pointing out that the Court rejected a religious-liberty claim in two previous cases. Scalia dismissed the argument, saying, “Not on the ground that it was a for-profit enterprise. There is not a single case which says that a for-profit enterprise cannot make a freedom of religion claim, is there?”
Kennedy then came back at Verrilli, noting how many companies–including secular ones–had received exemptions. “I still don’t understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.” In other words, if you’re so confident that RFRA doesn’t apply, then why give so many exemptions, waivers, and accommodations?
Later Kennedy raised another point, saying, “Under your view, a [for-]profit corporation could be forced … to pay for abortion.” When Verrilli wouldn’t give a clear response, Kennedy pressed him harder, “You say [for-]profit corporations just don’t have any standing to vindicate the religious rights of their shareholders and owners.”
When Verrilli agreed the DOJ’s argument would force that result, Alito noted that Denmark recently prohibited kosher or halal slaughter of animals. The Obama administration’s argument would mean that Jewish or Muslim establishments likewise could not raise a religious-liberty objection to such a law.
As Clement summarized the case, “This is not about access to … contraception. It’s about who’s going to pay for the government’s preferred subsidy. And I think in that context, there are ample alternative ways to address any burdens.”
Although it’s certainly not definite who won the case, at least four justices seemed to side with religious objectors over the Obama administration’s mandate, and very likely a fifth with Kennedy. (Even Justice Stephen Breyer said several supportive comments during argument, but it’s probably too much for the plaintiffs to hope they picked up a sixth vote.)
There are other issues regarding which millions of Americans are currently asserting religious objections. Hobby Lobby could include pronouncements on several principles which could tip those issues one way or the other in court.
Either way, it was not a good day for Obama or Obamacare at the Supreme Court. A decision is expected before July.