The Supreme Court justices are shown. | AP Photo

A Hobby Lobby win would mean businesses could opt out of aspects of ACA coverage.

Hobby Lobby decision: Nine justices to watch

Shortly after 10 a.m. Monday, the Supreme Court will issue its much-anticipated decision on the religious freedom challenge businesses have brought against the Obamacare contraception mandate.

Hobby Lobby, along with Conestoga Wood Specialties, are closely-held companies whose owners claim their religious rights would be infringed if the firms have to comply with parts of the Affordable Care Act. In particular, they complain about covering certain forms of birth control for employees and their families.

Story Continued Below

A win for the White House would help officials ensure that employer coverage is consistent, but employers would still be able to opt out of coverage altogether by paying a fine.

A win for Hobby Lobby would mean other businesses with a small number of owners could opt out of aspects of Obamacare coverage, possibly leaving employees on their own to pay for particular drugs or procedures.


The justices could also endorse Hobby Lobby’s claim to religious freedom rights, but leave it to lower court to sort out whether individual forms of birth control and other drugs or treatments are so essential to the operation of the health reform law that they can be required despite an employer’s religious objection.

But until the decision is handed down, the comments — and quips — from the oral arguments are still our best guide to where justices are likely to come out. On March 24, court-watchers examined every question, comment, twitch and grimace in a quest to divine where the justices are headed. Of course, it’s a truism that justices’ remarks at arguments don’t always reflect where they will ultimately come down in a case.

In that spirit, here’s POLITICO’s take on where the nine justices appeared to stand:

(Based on a story that appeared March 25, 2014.)

Chief Justice John Roberts: For the companies, but just ones like these

Courtwatchers analyzing which justice has written what so far expect that Roberts will be the author of the court’s majority opinion in Hobby Lobby. He joined with the court’s liberals to provide the key vote to save Obamacare’s individual mandate a year ago. The George W. Bush appointee could back the administration again, further angering conservatives, but it seems more likely that he’ll come down this time on the side of the health care law’s critics.

( Earlier on POLITICO: Takeaways from the Hobby Lobby arguments)

During oral arguments, Roberts gave the administration little to be happy about but did indicate he favors limiting protection to “closely held” companies controlled by families or no more than a few individuals — where the business can really be seen as an extension of the owners.

“Whether it applies in the other situations is a question that we’ll have to await another case when a large publicly traded corporation comes in and says: ‘We have religious principles.’ The sort of situation that I don’t think is going to happen,” he said.

Roberts also reminded everyone that the court wasn’t considering a definitive constitutional ruling, but just one applying a law Congress passed in 1993, the Religious Freedom Restoration Act. “If Congress feels as strongly about this as you suggest,” he told Solicitor General Donald Verrilli, “they can always pass an exemption, an exception to RFRA, which they have done on other occasions. And they haven’t done it here.”

Justice Anthony Kennedy: On the fence, but leaning toward the companies

Kennedy is often the man to watch in hotly contested Supreme Court cases, and his questions in March tracked with both sides’ arguments, obscuring his overall view.

He seemed troubled by the idea of allowing employers’ religious choices to override those of their workers. “You can have hypotheticals about the employer makes them, wants to make them wear burkas and so forth. That’s not in this case. The employee may not agree with these religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?”

However, the Reagan appointee quickly turned on the government. First, there were several biting questions about exemptions the administration granted to various entities, undercutting arguments that protecting for-profit companies’ religious beliefs would unravel Obamacare.

Then, Kennedy walked Verrilli into a buzzsaw, claiming that the administration’s position was that companies could lawfully be required to provide not only contraception, but also surgical abortion if a law required it.

”Under your view, a [for-]profit corporation … could be forced in principle to pay for abortions,” he said. “Your reasoning would permit that.”

As is often the case, Kennedy’s vote appears up in the air, but his use of the powerful abortion example, coupled with his references to already-granted exemptions, suggests he’ll rule that the law requires the Obama administration to accommodate the family-owned firms’ religious concerns.

Justice Stephen Breyer: Too cagey to call

Breyer won the award for Most Mysterious. He asked no questions whatsoever of the lawyer for the companies, Paul Clement, during Clement’s first 40 minutes at the lectern or his five-minute rebuttal.

When Breyer opened his mouth about an hour into the session, one of the first things that came out was a kind of disclaimer.

”My question reflects no point of view at all on my behalf,” the Clinton appointee insisted before suggesting there was a “less restrictive way” to provide contraception coverage by having the government pay for it when employers with religious objections didn’t want to. “This is not coming from any point of view,” Breyer claimed again, implausibly, while also demanding a “precise” answer from Verrilli.

Breyer did fret a bit about the implications of allowing taxpayers to withhold taxes to be spent on things they disagree with, but he also seemed to doubt that Jewish or Muslim butchers who organize companies would not have some religious rights. “I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals,” he said, before claiming again that his question was just a question.

Despite his defensiveness, Breyer sounded like a less than sure vote for the administration, though his history suggests he’d be reluctant to allow exemptions that could upend a complex law like Obamacare.