March 23, 2016

The "startling moment" in the argument about Obamacare and religious accommodations when Justice Kennedy said the word "hijacking."

Lyle Denniston describes today's oral argument in  Zubik v. Burwell:
“Hijacking” is what a long list of religious institutions that object for reasons of faith to contraceptive methods have used to describe what they say the federal government will do to their health-care plans as it moves toward providing free birth control to those institutions’ female employees and college students...

Four Justices remain from the majority... in the ruling two years ago... [in] Burwell v. Hobby Lobby Stores...  [Justice Kennedy, one of the 4, wrote a separate opinion endorsing] the technique the government had used for non-profit religious institutions, to allow them to opt out of the birth-control mandate, and suggested it would work for for-profit companies, too.  But that is the very “accommodation” approach that, on Wednesday, he labeled a form of “hijacking” of non-profits’ health plans....
Kennedy's use of the word may suggest that he will not vote with the Hobby Lobby dissenters, and the prediction would be that there will be a 4-4 tie, setting no precedent and leaving the results from the Courts of Appeals in place. That is, the government's accommodation would work in most states but not in Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota — the 8th Circuit.

15 comments:

eric said...

It's easy to lose our rights.

We've had them for so long, we have forgotten how quickly and easily thy can go away.

Basil said...

It's the cheapness of the cost of the loss of rights that I find so frustrating. Free birth control pills and condoms and IUD's. For women who can ALL afford to buy them.

For want of a condom, a kingdom was lost........

rhhardin said...

“Hijacking” is what a long list of religious institutions that object for reasons of faith to contraceptive methods have used to describe what they say the federal government will do to their health-care plans as it moves toward providing free birth control to those institutions’ female employees and college students...

The more you work at finding subjects for the various verbs the more comical the sentence structure gets.

AlbertAnonymous said...

Read the transcript of the oral argument and pay attention to the vehemence with which Justice Sotomayor fights against the term "hijack." WTF? Why so much passion about a word, a "characterization"? She's way more political than judicial. Wise Latina indeed!

AlbertAnonymous said...

All the government had to do was give the same exemption process to The Little Sisters of the Poor (who DO their faith) as it gave to the Cathilic church (who just prays in their view). I truly think the government was being mean and condescending here. An amicable resolution was easy. I HATE this political BS.

Ann Althouse said...

"Read the transcript of the oral argument and pay attention to the vehemence with which Justice Sotomayor fights against the term "hijack." WTF? Why so much passion about a word, a "characterization"? She's way more political than judicial. Wise Latina indeed!"

I do plan to get to the transcript but haven't done so yet.

What I'm guessing is that the word conveys outrage that the govt is doing something wrong with its intrusion into this realm.

I find that interesting considering that decisions about pregnancy belong to the individual.

But insurance makes everything different and it's hard to draw the lines about who gets to decide.

In any event, it is important to remember that there is no constitutional right involved, only a statutory right -- a statutory right aimed at rejecting a decision (about Free Exercise) that Justice Scalia authored.

So the right in question could have been taken away with a statute, and if Congress had had the votes, it could have put an exception to RFRA in the ACA itself.

These are not hard to shake rights we are talking about but statutory ephemera.

mccullough said...

The nuns should just close down. Notre Dame gave in and still operates despite its religious based objection. The law would be changed in a minute if they threatened to close down instead of just going to court.

The Catholic bishops and cardinals in the US were fools to support the ACA. The government just does what it wants. If you want to stop it, then you have to be willing to disengage from society and then disengage. Religious Hospitals and universities need to close. The government relies on these institutions so show them what it's like when you close.

Levi Starks said...

What you're seeing is just the beginning of a process of how we can expect the supreme court to respond between now and when they get back to full strenght. It has less to do with the actual issue, and more to do with not making a short handed decision. This time it seems to tilt in favor of conservatives, but I wouldn't count on that in every case.

MayBee said...

Insurance is so expensive and the deductibles to use it are so high- I can't imagine requiring the full coverage of birth control for women actually makes a financial difference for women.
So it was just something to make Emily's List feel like they'd gotten something for all of their PAC money and contributions.

SteveR said...

How did Kagan, Sotomayor, RBG and Breyer vote? Always rests on the legal issues involved and so unpredictable.

Unknown said...

And once again no one questions the lockstep voting of the progressive ideologues on the court. It's expected and just assumed, so that makes it okay. The four are not judges, they are political operatives with robes.

Hagar said...

I might be said to have a conviction so strong that it is religious in nature that birth control devices are personal items that have nothing to do with the public's "health," and thus is not for the govenment to mess with.

Conversely, the people on the other side of the question seem to be pursuing the imposition of this "insurance" requirement on other people with religious fervor.

Jupiter said...

In America today, "freedom of religion" means freedom to be a Muslim.

Michael K said...

Sotomayor is the real "Kardashian" in politics. She has no business on the Court,

damikesc said...

Hey, don't Progressives often demand obedience to stare decisis...well, for decisions they like?

They seem far less enamored of it when they do not like the results.