During today's oral argument in Sebelius v. Hobby Lobby, Solicitor General Donald Verrilli conceded that under the Department of Justice's interpretation of the Religious Freedom Restoration Act, a hypothetical "abortion mandate" could apply to all for-profit corporations (and non-profit non-religious corporations), without any ability to object. (In this case, abortion is not covered, but contraceptives are covered. The plaintiffs in this case were challenging the contraceptives that thin the uterine lining and make it more difficult for a fertilized egg to implant, which they believe terminates a human life.)
JUSTICE KENNEDY: Under your view, a profit corporation could be forced--in principle, there are some statutes on the books now which would prevent it, but--could be forced in principle to pay for abortions.
GENERAL VERRILLI: No. I think, as you said, the law now--the law now is to the contrary.
JUSTICE KENNEDY: Bur your reasoning would permit that.
GENERAL VERRILLI: Well, I think that--you know, I don't think that that's--I think it would depend on the law and it would depend on the entity. It certainly wouldn't be true, I think, for religious nonprofits. It certainly wouldn't be true for a church.
JUSTICE KENNEDY: I'm talking about a profit corporation. You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.
GENERAL VERRILLI: Well, I think that if it were for a for-profit corporation and if such a law like that were enacted, then you're right, under our theory that the for-profit corporation wouldn't have an ability to sue. But there is no law like that on the books. In fact, the law is the opposite.
CHIEF JUSTICE ROBERTS: I'm sorry, I lost track of that. There is no law on the books that does what?
GENERAL VERRILLI: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.
CHIEF JUSTICE ROBERTS: Well, flesh it out a little more. What--there is no law on the books that does what?
GENERAL VERRILLI: That requires for-profit corporations to provide abortions.
JUSTICE KENNEDY: What if a law like that--
CHIEF JUSTICE ROBERTS: Isn't that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that's what we had before us.
GENERAL VERRILLI: It is their sincere belief and we don't question that. But I will say, and I do think this is important and I say it with all respect, that that is how they--that is the judgment that they make. It is not the judgment that Federal law or State law reflects. Federal law and State law which does--which do preclude funding for abortions don't consider these particular forms of contraception to abortion.