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    Highlights from Hobby Lobby/Conestoga Wood Oral Arguments

    03/26/14

    By Hadley Heath

    Did you miss the Hobby Lobby/Conestoga Wood oral arguments yesterday?  Fear not!

    You can read the transcript here. Or, you can check out these highlights below:

    1. Justice Sotomayor comes out swinging against Hobby Lobby's case:

    JUSTICE SOTOMAYOR: Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines?  For some religions, products made of pork?  Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well? 

     

    JUSTICE SOTOMAYOR: But isn't there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than the cost of health insurance at all?  These employers could choose not to give health insurance and pay not that high a penalty ­­not that high a tax. [HealthCareLawsuits note: only $2,000 per worker per year]

     

    2. Justice Alito points out that there are less-restrictive means.

    JUSTICE ALITO:  Are there ways of accommodating the interests of the women who may want these particular drugs or devices without imposing a substantial burden on the employer who has the religiousobjection to it? 

     

    MR. CLEMENT:  There are ample less restrictive alternatives, Your Honor. 

     

    3. A skeptical Justice Kennedy asks whether corporations could be forced to pay for abortions.

     

    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. 

     

    GENERAL VERRILLI:  No.  I think, as you said, the law now ­­ the law now is to the contrary. 

     

    JUSTICE KENNEDY:  But your reasoning would permit that. 

     

    GENERAL VERRILLI:  Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.  It certainly wouldn't be true, I think, for religious nonprofits.  It certainly wouldn't be true for a church. 

     

    JUSTICE KENNEDY:  I'm talking about a profit corporation.  You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.

     

    GENERAL VERRILLI:  Well, I think that if it were for a for­profit corporation and if such a law like that were enacted, then you're right, under our theory that the for­profit corporation wouldn't have an ability to sue. 

     

    4. The government's lawyer admits that birth control is in fact, not free:

     

    GENERAL VERRILLI: ...The second point is that you're talking about a very open­ended increase in the cost to the government.  Now, we don't know how much that cost would be.  The reason is because, since this wasn't litigated in the lower courts, there's not a record on it.  So I can't tell you what that ­­ what that increased cost is going to be, but it could be quite considerable. 

     

    JUSTICE SCALIA:  You're talking about, what, three or four birth controls, not all of them, just  those that are abortifacient.  That's not terribly expensive stuff, is it? 

     

    GENERAL VERRILLI:  Well, to the contrary.  And two points to make about that.  First, of course  the ­­ one of the methods of contraception they object  to here is the IUD.  And that is by far and away the method of contraception that is most effective, but has  the highest upfront cost and creates precisely the kind of cost barrier that the preventive services provision is trying to break down. 

     

    JUSTICE ALITO:  I thought that.­­ I was taken by your answer.  I thought it was the government's position that providing coverage for the full range of contraceptives and other devices and drugs that are covered here is actually financially neutral for an insurance company, that that reduces other costs that they would incur. 

     

    5. Justice Alito asks about kosher slaughterhouses in Denmark. (Yep - that happened!) And Justice Kennedy joined in.

     

    JUSTICE ALITO:  What about the implications of saying that no for­profit corporation can raise any sort of free exercise claim at all and nobody associated with the for­profit corporation can raise any sort of free exercise claim at all?  Let me give you this example.  According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane.  Now, suppose Congress enacted something like that here.  What would the ­­ what would a corporation that is a kosher or halal slaughterhouse do?  They would simply ­­ they would have no recourse whatsoever.  They couldn't even get a day in court.  They couldn't raise a RFRA claim.  They couldn't raise a First Amendment claim. 

     

    GENERAL VERRILLI:  Well, I'm not sure they couldn't raise a First Amendment claim, Justice Alito. I think if you had a targeted law like that, that targeted a specific religious practice, that ­­ I don't think it is our position that they couldn't make a free exercise claim in that circumstance and so ­­

     

    JUSTICE ALITO:  Why is that ­­

     

    JUSTICE KENNEDY:  Well, but you're getting away from the hypothetical.  Say ­­ Justice Alito's hypothetical was that the impetus for this was humane  treatment of animals.  There was no animus to religion at all, which in the Church of Lukumi, there was an animus to the religion.  So we're taking that out of the hypothetical. 

     

    JUSTICE ALITO:  Exactly. 

     

    6. A skeptical Justice Kennedy points out that this issue wasn't even decided by Congress.

     

    JUSTICE KENNEDY:  Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes. 

     

    A ruling is expected in June. Stay tuned to HealthCareLawsuits.org for more updates on this case and others.  

     

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