|Arguments were all going well for the ACA until Justice Kennedy asked the magic question.|
Today's Supreme Court arguments about contraception, the ACA and religious liberty began with the ACA in a winning position.
It was clear from the get go that the Court’s liberals understood that their best course involved highlighting the dangerous consequences of a victory for Hobby Lobby. Paul Clement, the de facto Solicitor General of the Republican Party who argued the case on Hobby Lobby’s behalf, barely uttered his first sentence before Justice Sonia Sotomayor cut him off to ask what other medical procedures religious employers could refuse to cover in their employee health plans. Justice Elena Kagan quickly joined the party. If Hobby Lobby can deny birth control coverage, Kagan asked, what about employers who object to vaccinations? Or blood transfusions?
When Clement tried to deflect this list, Kagan came armed with an even bigger what. What of religious employers who object to gender equality, or the minimum wage, or family medical leave, or child labor laws? If the Supreme Court agrees with Hobby Lobby’s brief, which argues that laws burdening a corporation’s purported religious faith must survive the “most demanding test known to constitutional law,” then there would be few laws corporations could not exempt themselves from following.
So far, so good. And then Justice Kennedy dropped the bomb:
Kennedy did something different, he did not weigh in on the question of whether non-abortions can count as abortion — indeed, he seemed to understand the difference between birth control and abortion. Nevertheless, he looked at the government’s requirement to provide birth control coverage and envisioned a future law compelling Hobby Lobby to pay for actual abortions — just as he once gazed upon a requirement to buy health insurance and imagined the government forcing everyone to buy broccoli. In Justice Kennedy’s Courtroom, the government doesn’t have to defend the law it actually passed, it has to defend the worst law Kennedy can imagine them passing — even if that law would never make it through Congress.
Clement pounced on the opening Kennedy gave him the second he took the podium for his rebuttal argument. The government’s position, he claimed, goes straight to abortion and “that cannot be what Congress meant when it passed RFRA.” Kagan’s face grew even more worried.
In order to get through that line of logic, Kennedy would have to deny science and assume that IUDs, as one example, cause abortions. Despite reams of scientific literature to the contrary, it appears that he may be poised to go in that direction. And that will mean that any concerns he might have about employers denying other medical treatments in the name of religious liberty will also fly out of the window, because abortion trumps all else.
What's next? Will taxes be the next "religious liberty" argument? These forced birth advocates worship at the Altar of the Almighty Fetus first, then baptize themselves in fountains of coins. It's enough to make baby Jesus weep.