Obamacare Oral Arguments: SCOTUS Leaning Against Contraceptive Mandate?

Let's start with a caveat here: Reading the tea leaves of oral arguments is always a dangerous game. For one, Justice Clarence Thomas remains silent, so you'll get nothing out of him. Two, the rest of the justices generally agree that in nearly all cases, it's the briefs and law that decide the case, not the oral arguments.

That being said, for a case this important, we're definitely willing to pull out our crystal ball and review the transcripts and recaps for hints of the possible outcome.

What are the soothsayers saying? From the transcripts and the general consensus of those who actually attended, it's looking like bad news for the Affordable Care Act's birth control mandate.

Paul Clement, for Hobby Lobby and Conestoga

When an oral argument matchup pits a former solicitor general against the current solicitor general, this means two things: The case is epic, as will be the arguments.

Former Solicitor General Paul Clement, representing the corporations asserting religious rights, got a sentence and a half into his argument before the liberal-leaning members of the Court interjected with sharp questions about the dire consequences of his proposed position. Justice Sonia Sotomayor asked about blood transfusions, vaccinations, and medical products made from pork.

Clement responded that these issues would have to be litigated case by case, with compelling interest, least restrictive alternative, and substantial burden tests.

Then Justices Ruth Bader Ginsburg and Anthony Kennedy hammered on questions about statutory interpretation and whether the private parties could prevail on statutory grounds, rather than constitutional questions of corporations' First Amendment rights. (Is that the means to an anti-mandate end?)

And when the justices returned to the "parade of horribles," Clement referenced an old Justice O'Connor argument, where she said that you have to trust the courts. "Just because free exercise claims are being brought doesn't mean that the courts can't separate the sheep from the goat."

One great question by Justice Sotomayor: How do we determine the religious beliefs of a corporation? By a majority of the shareholders? By the percentage of goods sold with a religious theme? Justice Sotomayor argued that courts should refrain from engaging in sincerity evaluations, but Clement argued that such questions would be a part of the substantial burden test. (It'd be hard to burden a belief that one barely practices, it seems.)

Then there was back-and-forth over whether the $2,000-per-head alternative to providing coverage was a penalty or an appropriate tax as an alternative to violating the company's religious beliefs. (Is the left leaning toward "no burden" because there is a tax alternative to providing contraception?)

Donald Verrilli, for the Government

Solicitor General Donald Verrilli Jr. opened with an appeal to the interests of third parties, but was quickly shot down by Chief Justice John Roberts and especially Justice Antonin Scalia, who pointed out that the statute makes no mention of third parties.

Justice Alito then addressed the elephant in the room: the religious rights of corporations. Verrilli conceded that some corporations (i.e., churches) can bring free exercise claims, but for-profit ones cannot -- an assertion that left the conservatives unconvinced.

Verrilli also brought up the issue of determining a corporation's religious beliefs (small, closely-held, or massive publicly traded), but Chief Justice Roberts responded that it "is a question that we'll have to await another case when a large publicly-traded corporation comes in ... the sort of situation, I don't think, is going to happen," before noting that corporations can bring race discrimination claims, so why not religion?

Justices Alito and Roberts then hammered Verrilli with questions about the various exemptions, and how those affected the government's compelling interest argument.

Then, surprisingly, Justice Breyer jumped in with one of Clement's arguments, about whether a least restrictive alternative might be for the government to pay for birth control in cases where the corporation has a legitimate religious belief. Though he preceded his question with a "this is not my view" disclaimer, it is an important question that could come up in the ultimate opinion, and it came from the left side of the Court.

Verrilli cleverly responded with a reference to the nuns scenario from a few weeks ago, when a religious order argued that an act as simple as signing a piece of paper to get an exemption to the mandate amounted to participating in providing abortifacients.

Then Justice Kennedy, the oft-swing vote, chimed in, returning to questions about how the exceptions play into the compelling interest. If the administration grants exceptions to churches, "then it must have been because the heath care coverage was not that important," he said. Verrilli argued that the exception demonstrates the compelling interest, as it ensures that coverage is available.

And then, Justice Kennedy mentioned the A-word: "Under your view, a profit corporation could be forced ... in principle to pay for abortions." And Chief Justice Roberts made the point that the potentially protected belief here was that the disputed forms of birth control are abortifacients.

Then the argument turned to other countries' laws about kosher and halal meat preparation, and whether for-profit companies could challenge those laws where they to be enacted here. Justice Breyer asked:

"Take five Jewish or Muslim butchers and what you're saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise Clause that you'd otherwise have."

It is interesting that Breyer, a liberal member of the Court, repeatedly chimed in with tough questions. Might he be leaning towards joining the conservatives, in part or in whole?

Clement's Rebuttal

Clement, of course, jumped right back in with abortions and kosher meat, warning of the dire consequences of the government's interpretation. He also mentioned the government paying as a least restrictive alternative. Justice Sotomayor brought up the vaccinations and transfusions argument again, but Clement pointed out that the government already exempts religious employers from contraception, not the other hypotheticals.

The nuns made their return again, with Clement deferring the question about signing papers as a burden by stating:

"The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that."

Takeaway?

From the 100 pages of transcripts that I read (you're welcome), it does seem like the Court could be, at minimum, leaning 5-4 against the mandate, though Justice Breyer's repeated interjections, if they are more than a devil's advocate scenario, could indicate an even greater majority.

Then again, oral arguments, while entertaining, are still oral arguments.

Related Resources:

• Supreme Court signals support for corporate religious claims (Reuters)
• Liberty U's Religious Objection to Employer Mandate Goes Unheard (FindLaw's U.S. Supreme Court Blog)
• Doctors' Obamacare Lawsuit Dismissal Affirmed by D.C. Circuit (FindLaw's D.C. Circuit Blog)