Contraception Mandate case: It all comes down to Justice Kennedy (again)

March 26, 2014

SCOTUS ClipboardYesterday, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby Stores, Inc., which involves a legal dispute over the legality of the so-called “contraception mandate” (see this post for more details).

The issue has created deep divisions between those who support business owners and corporate executives who object to the mandate on religious grounds, and both those in support of increased access to contraceptives for women and those who believe that employees shouldn’t be denied access to certain health options simply because their employer finds it objectionable.

These rifts were apparent during oral arguments, with the Court’s conservatives – Chief Justice Roberts and Justices Scalia, Thomas, and Alito – aligning with the former camp and the liberals – Justices Ginsburg, Breyer, Sotomayor, and Kagan—taking sides with the latter.

This, of course, leaves Justice Kennedy in the middle once again.

As such, instead of dedicating time and space to discussing the views of the rest of the justices, we can predict how the Court will rule in the case by predicting how Justice Kennedy will vote.  I can even shorten the path to predicting the case further by summarizing Kennedy’s main concerns in ruling each way in the case.

Kennedy’s major concern from a potential ruling for the business challengers to the mandate, at least as seen from his questions during oral arguments, is that a ruling for the employers would allow “the employer to put the employee in a disadvantageous position.”  In other words, Kennedy was concerned that the Supreme Court siding with the businesses would allow them to impose religious views on their employees.

Also of note is the fact that Kennedy seemed to be strongly leaning toward the assumption that it would be “a wash” financially if employers chose to opt out of providing contraceptive insurance coverage for their employees and paid the tax instead.

This is actually quite a significant point in that Justice Kennedy appears to be of the view that there will be a minimal impact on corporations regardless of how the Court rules.  Really, although I said “regardless of how the Court rules,” this factor weighs in favor of the mandate, since it is the element that is responsible for making those businesses choose between following the law and following their religion to start with.  The fact that Kennedy views either decision as having comparable financial consequences means that he may see the corporations as less “oppressed” by the government’s mandate.

On the other side, though, is a significant issue that will be pivotal to any decision that Justice Kennedy takes part in.  Specifically, whether a ruling for the government could conceivably require for-profit corporations to pay for abortions.

Although Solicitor General Verrilli repeatedly stated that, under current law, that could never happen, Kennedy kept pressing the issue, insisting that the Solicitor General’s “reasoning would permit that.”

Thus, even if Kennedy comes down in support of upholding the mandate in general, there will likely be some limiting language that creates exemptions to prevent such a situation from ever arising.

It’s also entirely possible that the possibility of the government forcing private corporations to pay for abortions was so repugnant to Kennedy that he may have been scared completely away from any support for the mandate.  After all, it’s difficult to draw a line between forcing employers to pay for contraception and abortion – where both may be just as against their religious beliefs.

On the other hand, ruling for the businesses here could similarly open negative possibilities, such as allowing employers to object not only to other forms of health care coverage, but also to laws relating to Social Security, minimum wage, and discrimination.

It seems quite likely that Justice Kennedy would be well aware of the adverse effects from a sweeping ruling for the businesses, just as he clearly is concerned about the possibility of an employer-funded abortion mandate.

This will almost certainly be a five to four decision, with Justice Kennedy in the majority, but I’m not entirely sure how he will come down – aside from the fact that he’s unlikely to fully espouse either argument in its entirety.

In the end, since the government’s position is more in line with existing precedent, I’ll predict Kennedy to come down on that end of the spectrum (although just how far remains to be seen).