The Supreme Court sounded deeply divided today as it heard arguments in a politically charged challenge to the Affordable Care Act's contraceptive mandate, with its women on one side and its conservatives on the other. The hearing combined two cases—Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius— in which companies argued that providing employees with plans covering certain kinds of contraception violated their religious principles. Here's how the questioning went down:
- The court's women came out swinging in the first half of the hearing, according to Time. Sonia Sotomayor asked the challengers if a company could also object to vaccinations or blood transfusions. Elena Kagan said they were trying to use an "uncontroversial law"—1993's Religious Freedom Restoration Act—to upend "the entire US code."
- But in the second half of the hearing, the court's conservatives were more aggressive, and they sounded so sympathetic to the challengers that the LA Times' headline was "Justices sound ready to reject contraceptives mandate."
- "The ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind," writes Lyle Denniston at Scotusblog. "There was very little doubt where the other eight Justices would wind up: split four to four." And Kennedy's position was hard to read.
- In the first half, Kennedy sounded like he was with the liberals. At one point, he asked what rights female employees had if their employers ordered them to wear burkas, according to the AP.
- But later, Kennedy swerved the other way. "A profit corporation could be forced in principle to pay for abortions," he told the solicitor general. "Your reasoning would permit it."
- There were also signs that the justices were looking for a third way. Kennedy seemed amenable to Kagan and Sotomayor's point that companies weren't being forced to pay for contraception; they could pay a tax penalty instead.
- John Roberts suggested that many slippery slope concerns could be headed off by limiting the ruling to closely-held corporations like Hobby Lobby, which the Wall Street Journal saw as "tipping his hand." Stephen Breyer sounded open to that solution as well.
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