HH: I’m joined now by Adam Liptak, who’s the Supreme Court correspondent for the New York Times on an enormously significant day, the Court granting certiari in two very important religious freedom cases. I’m just going to call them Hobby Lobby and Conestoga. How are you, Adam, and Happy Thanksgiving to you.
AL: I’m well, Hugh, you, too.
HH: Are you surprised by the Court’s decision to redress this split in the Circuits?
AL: Not at all. It was, all the signs pointed toward the justices taking at least one of these cases. The Solicitor General was asking, the federal government was asking, that’s always a good sign. The lower courts were divided. That’s always a good sign. A federal law had been essentially struck down. That’s always a good sign. Even Hobby Lobby, which had won in the federal appeals court said the Court should take the case. So all the signs pointed in the direction of them taking it.
HH: And Footnote 7 in the Conestoga Case reads we acknowledge that the Court of Appeals for the 10th Circuit in an eight just en banc panel in six separate opinions recently held that for profit secular corporations can assert RFRA and free exercise claims. We respectfully disagree. So Adam, explain to a lay audience what this is all about and why Obamacare’s going back to the Court?
AL: So part of the Affordable Care Act says that large employers have to provide comprehensive contraceptive coverage to their workers, including contraceptives that a lot of people believe are equivalent to abortion, because they prevent embryos from implanting in the womb. Some religious organizations have been exempted from these requirements. But for profit corporations owned by people who have strong religious convictions about all this were not exempted. So Hobby Lobby is one of these companies owned by a Christian family, five people who say they don’t want to be complicit in something that violates their religious beliefs. The 10th Circuit said that’s right, for these purposes, even though you’re a corporation, you have religious liberty rights, and you are allowed to opt out of this part of the Obamacare statute.
HH: And I want to note for the benefit of the audience that the court in the 10th Circuit acknowledged that both the government and the medical amici, those are the peoples filing brief supporting the government, conceded that at least some of the contraceptive methods to which the plaintiffs object have the potential to prevent uterine implantation. So Adam, there really isn’t any argument here that abortifacients are involved. There really isn’t any argument here that RFRA is implicated. The question really is just whether or not corporations are protected by RFRA, right?
AL: That’s right. So there’s two ways, at least two ways to look at that. One is that it’s kind of an extension of what the Court, the Supreme Court said in Citizens United, which is that corporations have free speech rights under the 1st Amendment, and this is just another part of the 1st Amendment. On the other hand, it might make some people nervous that the owners of a corporation could just up and declare that their religion doesn’t allow them to treat black people the same as it treats white people. I mean, the argument gets a little unmoored once you start pushing on it.
HH: Now RFRA, the Religious Freedom Restoration Act, was passed in 1993 with overwhelming support explicitly applied to every subsequent act of Congress. No one disputes that it applies to the Affordable Care Act. The bit question comes down to what happens if the Court upholds the right of Hobby Lobby and Conestoga to make the claim that RFRA applies, and they find that it’s unduly burdensome? And again, Hobby Lobby, there’s really not much doubt that it’s burdensome, is there, Adam?
AL: No, well listen, if they decide to follow their faith, they can do one of two things, and neither of them is pretty. One is that they can stop offering comprehensive contraception coverage and face fines of more than a million dollars a day. The other is that it could deny, it could stop offering insurance coverage of any kind to its employees, which would be unfair to the employees. It would put Hobby Lobby in a competitively disadvantaged state, and even there, it leads to fines, a different set of fines, for these, for $26 million dollars a year. So there’s no question but that there’s a burden, and what the 10th Circuit said is that on the other side of the balance is a fairly small number of contraception methods, and also a scheme with already exempts on various grounds, maybe a third of all employers, so it’s not as though every single employer in the country was subject to these requirements. Only about two-thirds of them.
HH: And so $475 million bucks a year if Hobby Lobby refuses to comply, or they lose the ability to compete in the marketplace for 13,000 employees, and a lower fine, $2,000 per employee per year. So it’s a big deal. So it’s going to be for, we’ve got four justices who believe the law’s unconstitutional, right? So they’re not going to vote to uphold it, period, correct?
AL: I, you know, the usual thinking is that it’s a four-four split with Justice Kennedy in the middle. I think this case has so many issues and crosscurrents and complications that I’m a little hesitant to use that usual template and apply it to this case until I read some more briefs and really get my bearings.
HH: Okay, and then answer for me, if four of them believe and are on record as saying that the ACA is unconstitutional in whole, I doubt very much they’re going to find those same four, which include Kennedy, that’s it’s Constitutional in part.
AL: I see your point, and I guess I would raise you one and say that Chief Justice Roberts has not enjoyed all the criticism he’s gotten from his usual allies on the right, and on this question, he might be tempted, in addition to his legitimate legal analysis, he might be tempted to think he’s not going to want to part company with his usual allies a second time.
HH: And so that’s also useful, but then I raise the very interesting question, Adam. Anyone who’s read the Chief Justice’s concurrence in Citizens United knows that he has a particular view of stare decisis in that it doesn’t matter as much if the case that is being reversed is more recent, and if it’s caused controversy, and if indeed it is distorting the law. Think there’s any chance of the Chief Justice going back and reexamining his opinion in Sebelius and saying perhaps I was wrong, and that ACA ought to go, especially against the backdrop that the President’s been reelected, the threat to the Court’s independence are gone, and the fact that we all know this law’s a nightmare?
AL: Well, I think that last point, which goes to another stare decisis question of whether the earlier decision was workable, supports your view, Hugh. But I just don’t this new case squarely presents an opportunity to take on what after all was a challenge to a different part of the law, to the individual mandate. It’s a big old law. This is one provision of the law. It’s a little hard for me to see how through this vehicle the Chief could get there. I don’t disagree with you that given the proper vehicle, he might be tempted to reconsider his views.
HH: Now work with me on that, because I actually think this is going to be more and more like the iceberg tip out there, that the Chief Justice does get a second chance, because the Constitutionality of one aspect of it is raised, which is the ability to overcome RFRA, because it clearly conflicts with RFRA. The question is simply whether or not RFRA’s Constitutional in this context. Don’t you think he wants a way out of this? And don’t you think the country would be relieved, Adam Liptak, if he joined with his four colleagues and struck down Obamacare?
AL: You know, the climate looks very different than it did two years ago.
HH: It sure does.
AL: In part, the Court contributed to that climate by giving the states the opportunity to opt out of the Medicaid expansion. It’s hard to say. I think I probably disagree with you that this is a proper way to get at it, that this case is the right way to get at it. But I’m not sure I disagree with you about your larger conclusion, that they might like to get at it.
HH: Is it possible?
AL: Is it possible? How can I say it’s not possible? I think it’s quite unlikely.
HH: All right, Adam Liptak of the New York Times, we’ll be following your stories on this most important of cases.
End of interview.