Everyone knows the power granted by Justice Kennedy’s middle position on the Supreme Court. Indeed Paul Clement, the advocate for the plaintiffs in Sebelius v. Hobby Lobby, seemed to direct most of his arguments toward the concerns he imagines Kennedy to have about the case.
But even in Clement's most hopeful fantasies, he could not have imagined the gift that Kennedy would present him during questioning of the Solicitor General. Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”
When following the live blogs, I thought surely this must have been reported incorrectly, but here it is from the transcript:
JUSTICE KENNEDY: Under your view, a profit corporation could be forced – in principle, there are some statutes on the books now which would prevent it, but – could be forced in principle to pay for abortions.
Verrilli’s first response is the obvious and correct one: the hypothetical scenario is already illegal and not relevant to this case.
GENERAL VERRILLI: No, I think, as you said, the law now – the law now is to the contrary.
Now maybe Justice Kennedy’s modus operandi is to present false slippery slope arguments and then see how advocates squirm. During oral arguments about the Affordable Care Act, the court famously discussed if the government could mandate that citizens buy broccoli. It was a memorable line, and perhaps useful in some way. But it was a true hypothetical, since Congress has not enacted a statute against forcing citizens to pay for broccoli.
In yesterday’s case, though, the format was:
- “If the government compels A, what is to stop it in theory from forcing B?”
- “But sir, the Congress has already outlawed government from forcing B.”
In other words, a hypothetical “slippery slope” situation was presented for which a law already exists to define precisely the stopping point that makes the slope not slippery. It’s no wonder Verrilli was confused.
Verrilli eventually admitted than in some theoretical land, yes, there is nothing in principle to stop the scenario about which Kennedy asked. He hastened to repeat, though, “There is no law like that on the books. In fact, the law is the opposite.” Even despite Verrilli’s accurate protestations, the exchange was – rhetorically at least – an embarrassing moment for the government’s case.
Then Chief Justice Roberts pressed further, sensing the opening created by Kennedy’s question. “Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.”
As I understand it, though, the court was not tasked with answering the question of whether the plaintiffs are correct that certain pharmaceuticals classed as contraceptives are actually abortifacients. The court was not tasked to define whether pregnancy begins at fertilization or implantation, nor the mechanisms by which pharmaceuticals work. In the same way, the court was not tasked in U.S. v. Lee (1982) to define the precise way in which Social Security is a burden on the conscience of the Old Order Amish or in Employment Division v. Smith whether peyote really is a hallucinogenic necessary for anyone’s free exercise of religion.
Verrilli responded by citing the plaintiffs’ “sincere” belief in this “difficult case,” while making clear that state and federal law reflect line-drawing on the side of the government’s position. Furthermore, he returned to the implications of ruling on the accuracy of their religious beliefs about the matter: “the implications for entanglement and making the judgments when you move past that group, the administratability problems, and the problems of inviting the kinds of claims that are predictably going to impose harms on third parties.”
After this response, questioning moved on to Justice Alito’s “kosher or halal butcher vs. humane treatment of animals” analogy, one which has the great benefit of being legally relevant and possible to imagine happening (unlike Kennedy’s hypothetical).
But for Verrilli, it was too late. By raising the hypothetical of paying for abortions, Justice Kennedy introduced both a scenario that is already illegal and an issue of embryology and theology that the court is not tasked to decide (and indeed cannot decide). Kennedy's hypothetical also just so happens to coincide with exactly the scenario that the plaintiffs want people to fear – even though it is already illegal. It was no surprise, then, that Clement’s first point in his rebuttal centered on abortion.
The phrase ‘paying for abortions’ did one final disservice to our public discourse about the Affordable Care Act. Employers are not paying for specific health care services. They are required to make available health insurance providers that provide access to certain services, which employees may or may not use. The degrees of cooperation here are both morally and legally relevant, and to conflate the distance between health care premium support and the procedure itself obscures our understanding of insurance and the law in question.
Now the court may decide, in the end, that any degree of cooperation with what a ‘person’ (in this case, a corporation) views as religiously forbidden is too much cooperation for the government to coerce. They would have Thomas v. Review Board as a potential precedent there. The Tenth District used Thomas to explore whether the “substantial burden” or “substantial pressure” on free exercise exhibited in Thomas would also apply to Hobby Lobby.
The Tenth District made the analogy to the irrelevance of “line-drawing” in Thomas: “Once the plaintiff drew this line [between making the steel to be used in tanks and making the weapons themselves], it did not matter whether the line was “acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
But regarding the Hobby Lobby case, the court might draw its own line about degrees of cooperation, splitting off Thomas (in which the worker would physically be manufacturing material for weapons of war) from other scenarios that require, for example, pacifists and conscientious objectors to pay overall taxes, some of which go toward the waging of war. Is paying health insurance premium support more like paying taxes or is it more like manufacturing steel? And there are, of course, several other types of rulings possible.
But however the court rules, Justice Kennedy’s logic puzzle about abortion did not aid the process of getting there.