And here we are. After years of debate, protest, and litigation about the "HHS mandate" and its levels of exemption, accommodation, or non-accommodation under the Affordable Care Act, Hobby Lobby v. Sebelius and the related Conestoga Wood v. Sebelius are having their day in the Supreme Court.

I confess to feeling patriotic about the whole process. Every branch of government involved, multiple courts from different regions of the country, activist groups from mutliple angles getting involved, and -- to quote Grant Gallicho -- an opportunity for the whole country to actually learn how health insurance works.

Live information about the oral arguments is not that easy to come by, but the excellent SCOTUS Blog will have a transcript shortly thereafter.

So far, it sounds like Justices Sotomayor, Kagan, and Ginsburg are leading the questioning, primarily by asking about all the other types of health care and other laws that a ruling in Hobby Lobby's favor might call into question: vaccinations, blood transfusions, sex discrimination, family leave, child labor, etc. "Everything would be piecemeal," Justice Kagan said.

Ginsburg and Scalia offered conflicting views about the original intent of RFRA, with Ginsburg ironically playing an originalist kind of move back on Scalia. If lawmakers thought RFRA was granting religious rights to corporations, there would never have been such broad support of it, she argued.

Justice Kagan fears "religious objectors coming out of the woodwork."

A second line of questioning seems to be starting now, one raised by previous courts' dissents: that companies aren't being forced to provide health care at all, and they can choose to pay the tax instead to subsidize health coverage.


Until the transcripts come out, it seems like WSJ still has the most complete live blog of the discussion. Highlights include: 

Roberts was trying to tease out opportunity for a narrow ruling for "closely held enterprises" in favor of Hobby Lobby.

Alito made analogies to kosher and halal butcher shops and the limits of government interference with those.

The issue of whether certain contraceptives are abortifacients or not was raised by Kennedy, as a way of asking whether the government can force corporations to pay for abortions. If that reporting is accurate, it's an unusual phrasing, since what's being compelled is insurance, not the act itself (which is one of the key distinctions between this and other free exercise cases).

Alito also raised the question of just how important the conctraception madate could be as a government interest, if so many different groups are exempt from it or have coverage delayed.  The contrast here would be with U.S. v. Lee (1982), the Amish Social Security case, in which their free exercise was found to be burdened and yet overridden by compelling governmental interest in the Social Security program. Yet the Solictor General had ready examples of very important laws that had delayed or uneven implementations (e.g., the ADA).

All in all, it sounds to me like Roberts is leaning toward narrow ruling in favor of Hobby Lobby and Kennedy testing out both sides and not tipping his hand.

But of course, nobody knows...

UPDATE 1:30 PM: Lyle Denniston at SCOTUS Blog has just posted his recap of the oral arguments. As a matter of accuracy about the law, I'm really troubled that the justices (e.g., Kennedy) seem to have used the phrase "paying for abortions," when talking about pooled health insurance premiums. That seems to be a very sloppy way of describing insurance in such an august deliberative setting.


Finally, I can't help noting here what I also did on Twitter:


Surely I'm not the first to note this Supreme Court case about religion & contraception is happening on the feast of the Annunciation.

— Michael Peppard (@MichaelPeppard) March 25, 2014

Michael Peppard is associate professor of theology at Fordham University and on the staff of its Curran Center for American Catholic Studies. He is the author of The World's Oldest Church and The Son of God in the Roman World, and on Twitter @MichaelPeppard. He is a contributing editor to Commonweal.

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