Justice Anthony M. Kennedy, who probably holds the decisive vote, asked questions helpful to both sides. He appeared skeptical that the two family-controlled companies that objected to the contraception coverage requirement were burdened by the law, as they could cease providing health insurance at all. He also expressed solicitude for 'the rights of the employees.'Liveblogging the oral arguments for the Wall Street Journal, Jess Bravin writes:
But Justice Kennedy also had reservations about whether the government could require the companies in the case to provide coverage in light of the many exemptions and accommodations it has offered to other groups.
Justice Alito raised the highest-profile question in the case: Can for-profit corporations make free-exercise claims at all? Or rather, why did the government believe for-profit corporations can't raise such claims?
(Solicitor General Don Verrilli, representing the government), said that the Supreme Court never had held that for-profit corporations could make such claims. To recognize them now would be a 'vast expansion' of the exemption Congress had intended to create when passing (Religious Freedom Restoration Act) in 1993. But Justice Scalia retorted that the court never had ruled that commercial enterprises couldn't raise free-exercise of religion claims.And later:
Justice Kennedy raised one of the plaintiffs' main points: that the government already had exempted many employers from the Affordable Care Act's requirement for no-copay preventive services; religious nonprofit organizations receive an accommodation where they don't have to pay for some contraceptives, while churches and employers with under 50 workers are exempt.Lyle Dennison, summarizing for SCOTUSblog, reports that the argument was a two act plays, with the liberals justices questioning the corporations' lawyer first and then the conservative justices questioning the government's. With both arguments, Justice Anthony Kennedy appears to be looking at slippery slopes.
Mr. Verrilli pushed back on this. While churches are entitled to a 'special solicitude' from government, the accommodation to religious organizations still ensured that their employees had access to contraceptives, by requiring insurers to cover them at no cost. And there were no exemptions for the small employers he said. Rather, should those companies choose to offer insurance to their employees, they must provide the minimum coverage specified by the regulations, including the challenged contraceptives.
The ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind. There was very little doubt where the other eight Justices would wind up: split four to four.
In the first drama, Kennedy worried over the plight of women workers and he suggested that their interests could be protected with little cost to their employers. In the second he worried over the plight of corporations owned by families opposed to abortion and he implied that forcing them to pay for it would be wrong.
. . . In the end, what made trouble for each (side of the legal struggle) was the slippery slope: if we ruled for you, what would that mean for other factual scenarios or other laws that might impinge on religious beliefs?