WASHINGTON, D.C., March 26, 2014 ( – Observers across the political spectrum are saying that the federal government may lose the religious freedom case heard by the Supreme Court yesterday.

The Obama administration's controversial HHS mandate has been framed in the media as a requirement for employers to provide contraception, but the proceedings yesterday have many thinking the ruling may deal more with abortion.

In oral arguments yesterday, lawyers for the owners of corporations Hobby Lobby and Conestoga Wood argued that the federal mandate requiring insurance coverage of contraception, abortifacients, and sterilization violate existing federal law and the First Amendment. While the media and the Obama administration have popularly said the case is about a “contraception” mandate, the companies have brought their lawsuits on grounds that the mandate requires them to cover abortions. 


After the hearing, Ian Millhiser of Think Progress wrote that the mandate was doomed to fail. He said that Justice Kennedy – often seen as the Supreme Court's “swing vote” – “looked at the government’s requirement to provide birth control coverage and envisioned a future law compelling Hobby Lobby to pay for actual abortions.” Besides his infamous decisive vote in the 1992 Planned Parenthood v. Casey ruling, Kennedy has generally voted with pro-life judges when examining abortion cases. 

Slate's Dahlia Lithwick also indicated that the mandate is in trouble. Citing questions and statements by Justices Alito and Kennedy on the abortion requirements in the mandate, Lithwick wrote that Hobby Lobby and Conestoga lawyer Paul Clement made the case about abortions, not contraception, and concluded that “if that is what Kennedy needed to decide the case, then it’s an easy one for him to decide in favor of the religious objectors.”

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Family Research Council Senior Fellow for Legal Studies Cathy Ruse also cautiously concluded that the case would go against the government and for religious freedom.

“The justices showed strong concern for the devastating impact that the unfair HHS mandate would have on families who stand up for their consciences,” Ruse said. “Should the HHS mandate be upheld, businesses would face significant fines and employees would lose the plans and doctors they have come to know and trust. That's not good for families, kids or women.” 

Via an unofficial transcript, here is the point in the 90-minute arguments that have Millhiser concerned – when Department of Justice Solicitor General Donald Verrili did not deny that the government could require abortion coverage. 

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.

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. 

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.

VERRILLI: 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. In fact, the law is the opposite.

Immediately after this exchange, Chief Justice Roberts – who was the key vote in upholding the individual mandate two years ago – asked Verrilli what he meant by “no law like that on the books.” The Solicitor General responded that no law “requires for-profit corporations to provide abortions.”  He went on to claim that while Hobby Lobby's and Conestoga's lawyers believe abortions are covered under the mandate, that is not the case.

However, an agency under the federal Department of Health & Human Services has concluded that intrauterine devices – which are required under the mandate – prevent implantation. Without implantation, a fertilized egg, also known as a human being, will die.