Waiting for AMK

In the Supreme Court’s regrettable decision in Burwell v. Hobby Lobby, Anthony Kennedy wrote a very Kennedy concurrence in which he argued that “the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” So, presumably, the government should have avenues available to ensure that women would be able to get ACA-compliant health care plans that cover contraceptives despite the religious objections of employers. The government could, say, allow objecting employers to fill out a form, and the government would then provide the appropriate coverage without the employer’s involvement.

Well, the government tried that. And based on the oral arguments Kennedy apparently believes that the new accommodation still constitutes a “substantial burden” on the employer. (And the argument that the contraceptive mandate itself imposes a substantial burden was highly unconvincing in the first place.) As some of you know, this is the same game Kennedy has played with affirmative action — declaring it potentially permissible in theory, but somehow never finding a plan that’s constitutional in practice.

It’s also worth noting that at least three of the justices who think that filling out a form and knowing that someone else is providing your employees with contraceptive coverage constitutes a “substantial burden” do not believe that forcing women to drive hundreds of miles to obtain an abortion for no reason whatsoever constitutes an “undue burden.”