At Obamacare’s second round before the Supreme Court, the odds are growing the HHS abortion pill mandate will be struck down 5-to-4 for violating the Religious Freedom Restoration Act (RFRA) and that Chief Justice John Roberts will again write the opinion–only this time against the Obama administration.
There are only two cases the Supreme Court heard this past year’s Term yet to be decided, both significant. One is Harris v. Quinn, asking whether it violates the First Amendment for a state to compel personal health workers to support a particular union to represent their profession to secure Medicaid payments.
The other has profound implications for modern America, a blockbuster case that could be historic. It’s Burwell v. Hobby Lobby, formerly Sebelius v. Hobby Lobby, from when Kathleen Sebelius was Secretary of the U.S. Department of Health and Human Services (HHS).
At issue is an Obamacare regulation promulgated by Sebelius. The Affordable Care Act requires employers to provide “preventive care.” HHS–with the White House’s full support–issued a rule that “preventive care” includes birth control, including four types that actually cause abortion by terminating a pregnancy in its early stages.
Over 90 lawsuits have been filed challenging this rule. The Supreme Court took two brought by for-profit secular businesses owned by observant Christians who oppose abortion, Conestoga Wood Specialties and the Hobby Lobby retail chain.
When the justices hear cases, they try to evenly distribute the opinions. They divide their yearly Term into seven sittings, one per month for the seven months they hear cases, from October through April. At their closed-door conferences every week or two during those months, they announce to each other how they will vote on each case, then the senior-most justice in the majority assigns the Court’s opinion to someone.
They try to evenly distribute those opinion assignments over the year, and enough cases at the Court are unanimous that you can almost always make sure that 5-to-4 or 6-to-3 divided decisions don’t result in one justice writing too many opinions, because you can always assign one of the unanimous cases to one of the dissenting justices in the divided cases to ensure everyone has the same number.
The chief justice tries to make sure every justice gets to write one case per monthly sitting before allowing any justice to be tasked with a second opinion. Most of the justices write exactly one opinion in each sitting.
There are four justices who have not written an opinion from the March sitting when Hobby Lobby was heard: John Roberts, Antonin Scalia, Anthony Kennedy, and Samuel Alito.
Alito has only written six for the year, but he’s also the only justice who never wrote a decision from January, when Harris was argued. So it’s very likely that Alito will hand down Harris tomorrow.
So of the four justices who could be writing the decision, Roberts and Alito will have seven for the year, and Scalia and Kennedy have written eight. It’s very unlikely to be Scalia or Kennedy, because that would mean one of them would have nine opinions for the year; more likely, either Roberts or Alito will have an eighth.
It’s easy for a legal analyst to embarrass himself by predicting which way the Supreme Court will decide a case based on how oral arguments played out. Nonetheless, Breitbart News reported that the Hobby Lobby argument made it very likely there are five votes to side with the Christian-owned companies: the Court’s conservatives (Scalia, Alito, and Clarence Thomas), the one moderate (Kennedy), and the one best described as a moderate conservative (Roberts).
Roberts and Kennedy are seen as the only two swing votes in this case, especially since Roberts was the deciding vote to save Obamacare in the historic 2012 case, NFIB v. Sebelius. If Roberts is in the majority, as chief justice he is the most senior justice, and there is a good chance that he will choose to write the opinion himself.
For the reasons explained analyzing the oral arguments in March, the Court is likely to hold the following: first, that religious-liberty rights include the right of a business owner to run that business consistently with his religious faith; and second, that the HHS abortion pill mandate is a substantial burden on the religious faiths of those who object to abortion, and therefore violates RFRA.
Since the Court can decide the cases on those grounds, it is unclear if the justices will further decide if secular businesses (not churches and the like) can take on the religious character of their owners and assert their own religious-liberty rights. Moreover, since they can decide this case based on an Act of Congress, it’s unlikely the justices will also reach the larger question of whether this federal regulation also violates the Free Exercise Clause of the Constitution’s First Amendment.
The Supreme Court will announce its decision at 10:00 a.m. Monday.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.