Women Justices Rock the Hobby Lobby Argument

By Jeffrey Toobin, The New Yorker

26 March 14

here were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win.

The issue in the case is straightforward. The Affordable Care Act requires employers who provide health insurance to their employees to include coverage for contraception. The owners of Hobby Lobby, a large (thirteen-thousand-employee), privately held chain of stores, regard certain kinds of birth control (like the I.U.D. and morning-after pills) as forms of abortion, which is against their religious principles. Does the employees’ right to choose and obtain birth control trump the employer’s right to religious freedom?

There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power. Sotomayor asked, “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?” Clement hedged in response. When Clement asserted that Hobby Lobby’s owners, because of their Christian values, did care about making sure that their employees had health insurance, Kagan shot back:

I’m sure they want to be good employers. But again, that’s a different thing than saying that their religious beliefs mandate them to provide health insurance, because here Congress has said that the health insurance that they’re providing is not adequate, it’s not the full package.

Indeed, Kagan recognized that Clement’s argument took on much of the Affordable Care Act, not just the contraception provision. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, ‘No, I don’t want to give that,’ that woman is quite directly, quite tangibly harmed.”

Solicitor General Donald Verrilli, who was defending the law, invested heavily in the argument that for-profit companies like Hobby Lobby simply do not have rights to religious expression under the First Amendment. “It would be such a vast expansion of what Congress could have thought it was doing to say that for-profit corporations can make claims for religious exemptions to any laws of general application that they want to challenge,” he said. But the Justices (even Kagan) didn’t seem to be buying that claim entirely, so he moved on to defending the rights of the women employees to health care. In the antiseptic language of the courtroom, Verrilli said that the Court should “require consideration of the interests of third parties.” (Notably, the Obama Administration chose not to contest Hobby Lobby’s assertion that use of an I.U.D. was tantamount to abortion; Verrilli said that the government accepted the sincerity of that view.)

Still, the conservative Justices turned the subject away from the rights of the employees and to the rights of the employer. Anthony Kennedy pointed out to Verrilli that “under your view, a profit corporation could be forced… in principle to pay for abortions.” Verrilli ducked, saying that there was no such law.

“But your reasoning would permit that,” Kennedy followed up. “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.”

Finally, Verrilli had to concede, “Well, I think that if it were for a for-profit corporation, and if such a law like that were enacted, then you’re right, under our theory, that the for-profit corporation wouldn’t have an ability to sue. But there is no law like that on the books.”

But Chief Justice John Roberts, never one to miss an advantage, pressed Verrilli on this point. “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.” Verrilli was forced to concede that this was “a difficult case.”

The outcome of the case is not certain, although it does seem like eight votes are locked in, split along the customary four-to-four lines. And some of Kennedy’s questions made it appear that he was sympathetic to Verrilli’s arguments. There is no such thing as a women’s position on this case or on any other issue. But there is such a thing as women’s voices, and with this case, especially, it was important that they be heard. On this day at the Supreme Court, they were.

SEE ALSO: Justice Kennedy Thinks Hobby Lobby Is An Abortion Case — That’s Bad News For Birth Control