The Supreme Court heard arguments in the dual Obamacare contraceptive cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius yesterday, and the upshot is that prospects are looking rather grim for the government's case. As we've discussed here before, both suits involve each corporation's religious objections to the law mandating coverage for emergency contraception.
On one hand, the case seems cut and dry. As Justices Sotomayor, Kagan and Ginsberg argued yesterday, if the door is opened to religious objections to the law, it would allow corporations to freely discriminate against women and minorities, as is authorized in the Bible. Hell, a particularly radical corporation could interpret pro-slavery passages in the Bible to ignore the 13th Amendment on religious grounds.
This is an extremely salient point, and kind of an open and shut case. The Bible is loaded with metaphors, allegory, archaic laws (see Leviticus) and multiple disputed translations. There's an extraordinarily massive opening for anyone -- not just corporations -- to cite religious freedom as an excuse to ignore a wide variety of laws. Hobby Lobby could use a decision in its favor to refuse service to everyone from LGBT customers to Jewish people (the whole killing Christ thing) to anyone wearing garments made of two different cloths. As Justice Kagan noted, Hobby Lobby could also refuse to offer insurance coverage for a variety of other medical treatments -- blood transfusions, vaccinations and so forth.
It was on these points that the liberal-leaning justices evidently had Paul Clement, the attorney arguing for Hobby Lobby, totally kerfuffled. To top it all off, one of the justices noted that Hobby Lobby could simply refuse to offer any coverage at all and accept the tax penalty.
But then the proceedings took a dangerous turn.
We've always known that these cases would likely come down to five-to-four decisions with Justice Anthony Kennedy as the predictable swing vote. As I wrote a while back, the government's case essentially rests with Kennedy, which is why it was so alarming to read that Kennedy focused heavily on abortion, a topic which is the centerpiece of the Hobby Lobby case.
Simply put, emergency contraception coverage mandated in the Affordable Care Act has been brutally and perhaps deliberately misinterpreted as covering so-called "abortifacients." In fact, the emergency contraception pills covered in the law were specifically selected because they don't block the implantation of a fertilized egg. If the ACA covered such medication, it'd be in violation of the law, like it or not. But none of the implantation-blocking morning-after pills are covered. The pills that are covered merely block ovulation, which... who cares?
The hope has always been that the government's lawyers would make a solid effort to persuade Kennedy about the science of what's covered and what isn't. And they did. Kennedy seemed to understand that the emergency contraception covered in the law doesn't induce an abortion. Which is good.
However, the most astonishing thing to emerge from the case was Kennedy's assertion that if the government forces Hobby Lobby or other corporations with religious objections to enroll in health insurance policies that cover this form of contraception, then someday down the road the government could also force Hobby Lobby and others to accept insurance policies that cover abortions.
So yes, Justice Kennedy accepted the government's current argument in support of the ACA. But then proceeded to make a case against an imaginary law that might be passed sometime in the future. Worse, he expected the government to make a case against that imaginary law. Come to think of it, what if Congress forces Hobby Lobby to buy goods produced in China where abortion is a government service. Oh wait, Hobby Lobby already stocks China-produced merchandise. Never mind.
Regardless, it now appears as though the Hobby Lobby case will be decided based entirely on a nonexistent future abortion mandate. And because of Kennedy's make-believe law, the Supreme Court could set a dangerous precedent, not only for women's health, but also in support of religiously-based discrimination in the workplace.
Yeah, if this sounds hopeless right now, it's because it is. A positive outcome depended on Kennedy maintaining a reasonable posture. But it sounds like he's gone bye-bye.