By Dave Andrusko
I had a chance this afternoon to read the entire 100+page transcript from Tuesday’s widely anticipated Supreme Court oral arguments in which the justices heard an extremely thoughtful challenge to the HHS mandate which compels employers to provide health coverage for drugs and procedures to which they have moral or religious objections.
We’ve commented previously on the 90-minute back and forth on “Sebelius v. Hobby Lobby” and “Conestoga Wood v. Sebelius” (nrlc.cc/1iBhOKX and nrlc.cc/QgOVKJ), so this post will be more of a series of hopefully informed impressions.
I suppose it’s fairly common, but the lawyer for the plaintiffs had not completed his second sentence before former Solicitor General Paul Clement was interrupted by Associate Justice Sonia Sotomayor. Her line of questioning was one she (and other justices, particular Elena Kagan) used as a kind of moat to try to separate the Obama mandate from Clement’s extremely effective attacks.
In a word if Hobby Lobby and Conestoga Wood can successfully argue a religious objection, then (in Justice Kagan’s words) “you would see religious objectors come out of the woodwork.”
As he always is in front of the justices, Clement was unflappable. Each case is different, he argued, and the “parade of horribles” offered up by the government is hypothetical and unconvincing.
The justices who favored the Obama mandate kept trying to find some irresolvable scenario that would force Clement to back off. Each one they offered—including what happens if a single stockholder in a company does not have a religious objection to providing health coverage for a particular drug or procedures –-Clement provided a perfectly rational, acceptable answer to.
You had to feel sorry (sort of) for Solicitor General Donald Verrilli, who is not nearly as quick on his feet as Clement is. (Every time he said he wanted to “walk” the justices through a particular point, he stumbled.)
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He made it to his third sentence before Chief Justice John Roberts politely asked if Verrilli’s opening words weren’t “inconsistent with RFRA,” the Religious Freedom Restoration Act, which was at the core of the defense relied on by the plaintiffs.
Understandably a debate on what the RFRA meant/means took up a lot of time.
Verrilli had the unenviable task of trying to demonstrate that the government had a “compelling state interest” in requiring what Hobby Lobby and Conestoga Wood opposed providing, given the many exemptions the Obama administration had provided. Verrilli had a particularly difficult time with the “grandfathering” clause [allowing people to hold onto old insurance policies that don’t meet the new ObamaCare requirements], both explaining why it was used and predicting when (in the foreseeable future) it might expire.
As the Los Angeles Times’ Jon Healey described the exchange, “As [Chief Justice John] Roberts noted, there’s no date certain for grandfathered plans to be eliminated. In theory, they could continue until all of their current holders reach retirement age and switch to Medicare.”
This intersected with the question of why mandating the services Hobby Lobby and Conestoga Wood objected to furthered “a compelling governmental interest.” As Healey put it (summarizing a line of questioning from Justices Roberts and Samuel Alito), “If it’s so compelling to require employers’ health plans” to include this coverage, “why did the Affordable Care Act allow people to hold on to ‘grandfathered’ plans that didn’t include the coverage?”
There was one other very important point begun with question from Justice Alito: “What about the implications of saying that no for-profit corporation can raise any sort of free exercise claim at all and nobody associated with the for-profit corporation can raise any sort of free exercise claim at all,” which is the government’s position.
What about abortion? Justice Anthony Kennedy put it this way:
“Under your view, a profit corporation could be forced — in principle, there are some statutes on the books now which would prevent it — could be forced in principle to pay for abortion.”
“Well, I think that if it were for a for profit corporation and if such a law like that were enacted, then you’re right, under our theory that the for profit corporation wouldn’t have an ability to sue. But there is no law like that on the books.”
In the four minutes he was given in rebuttal time, Clement picked up on Verrilli’s less than sterling response. Clement said
“Let me start with the Abortion Conscience Clause, because it tells you something about where Congress has drawn the line and it tells you the consequences of the government’s position. Historically, those conscience provisions have applied to all medical providers, including for-profit medical providers. But we learned today that as far as the government’s concerned, that’s just Congress’ judgment. If Congress changes its judgment and says that a for-profit medical provider has to provide an abortion, RFRA doesn’t apply. That, with all due respect, cannot be what Congress had in mind when it passed RFRA.”