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It appeared to come as a surprise to the Obama Administration’s lawyer that the abortion-pill mandate case before the Supreme Court had anything to do with abortion.
Deep into his argument about how the HHS Mandate doesn’t pose a substantial burden to businesses because for-profit business owners can’t exercise religion, the Obama Administration’s Solicitor General seemed to get stumped by the question at the heart of this case.
Justice Kennedy asked Solicitor General Donald Verrilli a very simple question. Under the Obama Administration’s theory of the case, could the federal government force employers to pay for abortions? The Solicitor General attempted to evade the question saying that there is no such law. Chief Justice Roberts asked the Solicitor General to repeat his answer: there is no law doing what? Solicitor General Verrilli triumphantly repeated that there is “no law” forcing employers to pay for abortions.
Chief Justice Roberts interjected, isn’t that what the plaintiffs in this case are arguing. The federal government is forcing them to pay for abortion pills that they say violate their faith.
The Obama Administration’s lawyer was stunned. From my vantage point in the Courtroom he looked like he didn’t know what hit him.
Yet, this is the fundamental question in the case. Can the federal government force an employer to pay for abortion pills in violation of his or her deeply held religious beliefs.
The Solicitor General attempted to make an incoherent argument about how abortifacient drugs aren’t actually abortions.
If there was a “the moment” in this oral argument, that was it.
While this was the moment where the Obama Administration looked like a deer in the headlights, they did make their position very clear:
1) If you run a business, you give up your religious liberty rights.
2) Being forced to pay an outlandish more than $400 million fine is not a substantial burden to your religious liberty because you can “choose” to deny health insurance to your employees entirely and pay a $26 million dollar “tax” instead.
3) Abortion pill coverage is a “fundamental” right.
4) There is no other way the government could possibly come up with to ensure people got their free abortion pills outside of forcing business owners to violate their faith by paying for them.
If any of these sound like a stretch of not only the Constitution but of reality, you’re not alone. At different points, Chief Justice Roberts, Justice Alito, Justice Scalia, Justice Kennedy, and even Justice Breyer took issue with several of the government’s arguments. (Justice Thomas was silent as usual).
You can never read too much into an oral argument, but a strong case was made today that no American should be forced to violate their faith by paying for abortion pills.
Matthew Clark is Associate Counsel for Government Affairs and Media Advocacy with the ACLJ. A lifelong citizen of the Commonwealth of Virginia, he lives with his wife and three boys in Northern Virginia. Follow Matthew Clark: @_MatthewClark.