Will Justice Anthony Kennedy side with the Little Sisters of the Poor? “Yes” is the consensus conclusion from Wednesday’s oral argument in Zubik v. Burwell, the case to determine whether the government can require religious non-profits that wish to opt out of the Affordable Care Act’s contraception mandate to sign a waiver naming their insurance company or administrator.
The conclusion turns on the use of the word “hijack” by opponents of the government’s position to describe the ACA’s getting Zubik et al.‘s insurers to provide the contraception coverage free of charge. At one point Kennedy, in the words of Scotusblog’s Lyle Denniston, “deployed that word in obvious sympathy to those institutions.”
But any such sympathy must be weighed against competing evidence. And Kennedy, whose position will almost certainly determine whether the Scalia-less court sides with the Obama administration or splits 4-4, gave a clear signal that he will hold to the position he took two years ago in Hobby Lobby, which gave some for-profit companies the right to opt out of the contraception mandate.
Then, in a separate concurrence, he indicated that the waiver arrangement designed for religious non-profits successfully balanced religious liberty and the government interest in providing women with free contraceptive services. “In these cases,” he wrote, “the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”
Here’s his key remark from yesterday: “It’s going to be very difficult for this Court to write an opinion which says that once you have a church organization, you have to treat a religious university the same. I just find that very difficult to write.”
This is key because Zubik is more about institutions of higher learning than about an order of nuns that runs a few dozen old-age homes — though you’d hardly guess that from what the petitioners’ lawyers had to say or from the optics outside the courthouse, where a number of the sisters were thrust before the cameras. Most of the cases consolidated into Zubik involve religious colleges, and you can be sure that if the decision were eventually to give them what they want — the blanket exemption offered to churches and other narrowly religious institutions — then Notre Dame and Georgetown and Boston College would immediately line up for their own blanket exemptions.
What Kennedy was saying is that he’s not prepared to let that happen. And it’s clear that this worried Paul Clement, the wily lead attorney for the petitioners, because it was the issue he returned to in his rebuttal time.
In his Hobby Lobby concurrence, Kennedy could not have been clearer about the importance of the mandate itself. “There are many medical conditions for which pregnancy is contraindicated,” he wrote. “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”
That seems sufficient reason to think he will permit the government to go ahead with the hijacking.