Ian Millhiser, commenting at Think Progress on yesterday’s oral arguments in the Hobby Lobby case, is concerned that “Justice Kennedy Thinks Hobby Lobby Is an Abortion Case—That’s Bad News for Birth Control.” Millhiser says Kennedy “views abortion as a grave moral wrong.” I don’t know how one can so confidently say this of the joint author of 1992’s Planned Parenthood v. Casey. (Millhiser notes that Kennedy has not cast a “pro-choice” vote since that ruling, but then again, the survival of Roe v. Wade as a precedent hasn’t been squarely before the Court in all that time, either.)
Here is the passage in yesterday’s oral argument that worries Millhiser:
Justice Kennedy: Under your view, a [for-]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.
Solicitor General Verrilli: No. I think, as you said, the law now—the law now is to the contrary.
Kennedy: But your reasoning would permit that.
Verrilli continued to resist Kennedy’s simple hypothetical question, treating it as though he could not answer it unless there were really such a law on the books—and as though he had not spent his whole legal career since law school entertaining hypotheticals to test a principle!
And then the chief justice intervened:
Chief Justice Roberts: I’m sorry, I lost track of that. There is no law on the books that does what?
Verrilli: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.
Roberts: Well, flesh it out a little more. What—there is no law on the books that does what?
Verrilli: That requires for-profit corporations to provide abortions.
Justice Kennedy began to speak at this point, and Chief Justice Roberts cut him off by pursuing Verrilli like a hound who has treed a raccoon:
Roberts: 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.
What Kennedy treated as hypothetical, in other words, Roberts pointed out is not hypothetical at all. It’s actual. It is this case. Hobby Lobby is an abortion case, and at this moment in the argument, Roberts may just have sewn up Kennedy’s vote. Not because Kennedy is morally perturbed by abortion itself; I doubt he is, much. But because he is probably very concerned, and rightly, with a regulatory mandate that forces people to violate their religious beliefs about the sanctity of life by providing and paying for abortions. Roberts spoke circumspectly about the employers’ “religious beliefs” about the drugs and devices that cause abortion, and it was right for him in this context not to say more. But they do cause abortion, and so this is, in a way that should be very important to Justice Kennedy, an abortion case.
Millhiser objects to Roberts’s intervention, and insists (as Verrilli feebly did yesterday) that Hobby Lobby and Conestoga Wood are mistaken, citing a brief filed by some medical professionals that “explains” that no abortions are caused by any of the mandated drugs and devices. That “explanation” rests on wordplay about “pregnancy” and “implantation.” For the truth, see this brief instead.
Yes, this is an abortion case, and a religious freedom case, and a government-overreaching-its-authority case. As I said to Bill Bennett this morning, yesterday’s arguments make me optimistic. When Bill asked for a prediction, I took the bait, for better or worse: 5-4 victory, Roberts writing for the Court, Kennedy concurring, June 26. You read it here first.