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Paul Clement, attorney for Hobby Lobby and Conestoga Wood Specialties.
Associated Press/Photo by Charles Dharapak
Paul Clement, attorney for Hobby Lobby and Conestoga Wood Specialties.

Lawyers optimistic after Hobby Lobby hearing

Healthcare Mandate | In today’s Supreme Court arguments on the contraceptive mandate, the justices seemed bothered by executive power over religious freedom

WASHINGTON—Snow fell steadily on the U.S. Supreme Court on Tuesday as the justices heard the cases of Hobby Lobby and Conestoga Wood Specialities, two businesses with religious owners who object to providing federally mandated abortifacients under their employee health insurance plans.

The heart of the case is not whether the contraceptive mandate is bad or good, but whether for-profit corporations can challenge a law on religious grounds. But the justices were caught up in the question of why a government agency, rather than Congress, was determining religious exemptions in the first place.

The Greens, the evangelical owners of Hobby Lobby, sat together in the courtroom along with the Hahns, the much more private Mennonite owners of Conestoga. The Hahns never commented on the court case until after the arguments today.

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“We didn’t choose this fight,” said Anthony Hahn, CEO of Conestoga, after the families left the courtroom. “We would have been happy to just continue to provide good healthcare.” Conestoga and Hobby Lobby both cover 16 of the 20 Food and Drug Administration-approved contraceptives in their employee health plans, objecting to four as abortifacients. Conestoga has about 950 employees while Hobby Lobby employs about 13,000 people.

The case pitted old courtroom foes: Solicitor General Donald Verrilli Jr., representing the government, and Paul Clement, representing the Hahns and the Greens. Verrilli and Clement battled in the major case challenging Obamacare in 2012. Clement was quicker on his feet in the arguments Tuesday, but rhetorical skill doesn’t necessarily win cases—Verrilli famously faltered in the Obamacare case but still won.

In today’s arguments, the justices were divided along gender lines. If that holds, the businesses would win at some level with a 6-3 vote. Predicting the outcome of a Supreme Court case is folly, as the healthcare decision proved. But in the arguments, the male justices seemed on the side of the businesses’ right to challenge the mandate, while the female justices characterized contraceptives as a right that businesses were denying their employees.

Justice Ruth Bader Ginsburg argued the Religious Freedom Restoration Act (RFRA), under which the companies say they have protection as persons, would not have passed Congress with such unanimity if the law had been meant to cover for-profit corporations.

“We can think about how this would apply to Exxon but I think in the real world this is not going to happen,” replied Clement. He said most corporations seeking religious protection would likely be small and closely held.

Justice Elena Kagan said granting Hobby Lobby an exemption would force courts to revisit every part of U.S. law, from sex discrimination statutes to minimum wage.

“You would see religious objectors come out of the woodwork,” she said.

Clement dismissed that argument as a “parade of horribles.”

“Just because free exercise claims are brought doesn’t mean courts can’t separate the sheep from the goats,” he said.

The question of whether for-profit corporations have religious protection like nonprofit corporations is a new issue for the Supreme Court.

“There is not a single case in which a for-profit company was given an exemption,” Verrilli said.

“There’s not a single case where it was denied either,” replied Justice Antonin Scalia.

The biggest surprise in the arguments was Justice Stephen Breyer’s skepticism toward the government. Breyer, part of the court’s liberal wing, questioned why the government couldn’t just cover contraceptives itself, or arrange coverage apart from the employer, especially if contraceptives are cost-neutral, as the government claims.

Before he posed his critical questions to the government, Breyer emphasized, “My question reflects no point of view at all.” The courtroom laughed, an acknowledgment of the tea-leaf reading that happens after oral arguments.

But Breyer underscored his skepticism toward the government when Justice Samuel Alito introduced an example of a European law forbidding kosher and halal slaughterhouses.“I don’t think it matters whether they call themselves corporations or individuals,” Breyer piped in. That would undergird the businesses’ argument that they have protection as persons under the RFRA.

“Breyer gave us a lot of hope,” said Matt Bowman, an attorney for Alliance Defending Freedom, which represented Conestoga.

Most court watchers kept their eyes on Justice Anthony Kennedy, as usual. Kennedy was concerned that an exemption would deny contraceptives to employees—but he seemed more bothered that Congress did not pass the mandate in the first place. The Department of Health and Human Services created the mandate after Obamacare passed.

“When we have a First Amendment issue of this consequence, it’s to the Congress, not to an agency to give the exemption,” he said. Kennedy, who dissented from the decision upholding Obamacare, slyly asked if the court should review “the constitutionality of the whole act.”

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