Today, the Supreme Court heard oral arguments for two cases that involve the Affordable Care Act, contraceptives, and religious freedom. Hobby Lobby and Conestoga Woods, combined by the Court, examine the extent to which the federal government’s mandates can infringe on the free exercise rights of religious business owners.

According to early reports, the Court is, shockingly (!), divided, at least based on questioning. Reading much into questioning, however, is a quick trip toward predictive ruin.

The mandates require businesses furnishing health care plans to abide by regulations laid down by the Dept. of Health and Human Services. These guidelines, upon recommendation of the F.D.A., included contraceptives, four of which might* be abortifacients, or drugs that terminate a pregnancy.

*I say “might” because there is serious disagreement within the medical community over the nature of those drugs and over how to define “pregnancy” and “conception.”

The businesses are suing based on the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act (RFRA), a law that Congress passed to supplant the Supreme Court’s holding in Smith, where the Court held that free exercise could be burdened by religiously neutral and generally applicable laws. Smith involved peyote, an illegal drug according to Oregon’s laws, use within religious ceremonies. The case proved so controversial that Congress acted to undermine it and return the judicial branch toward pre-Smith standards that required the government to show a compelling interest before it could burden religious exercise AND to further the interest with the least restrictive means available. The Supreme Court struck down RFRA’s application to states in City of Boerne v Flores, but it is still applicable to the Federal Government.

The relevant legal questions seem to be as follows:

1. Hobby Lobby and Conestoga Woods are privately owned, for-profit businesses. Can such businesses engage in religious exercise and thereby claim First Amendment protection?
2. Does the provision of contraceptives constitute a substantial enough burden to trigger a free exercise claim?
3. Does RFRA allow for-profit businesses to bring such suits?
4. Can the government demonstrate a compelling interest in requiring private businesses to furnish contraceptives as part of legally mandated health policies?
5. If the interest is compelling, do the HHS mandates do so with the least restrictive means available?

How the Court might answer these questions remains to be seen. If forced to guess, I think the Court says “yes” to 1, 2, 3, but 4 and 5 will likely be quite fractured. Ed Whelan, who sneezes enough constitutional knowledge into his handkerchief to settle most disputes, seems to think 5 might be the clincher, with the Court ruling that the HHS could accommodate objections for private, for-profit businesses in the same way it has for religious non-profits. If that happens, Hobby Lobby wins.

I am not quite that confident. My gut tells me the Court could rule that providing the contraceptives is not a substantial burden and that free exercise might only be triggered if the corporation were forced to actively engage in behavior that violates free exercise. While providing the benefit might seem to fit that definition, I could see the Court, and Justice Kennedy in particular, arguing that the benefit does not necessitate the objectionable behavior, but merely provides employees the freedom to devise their own reproductive health care strategies. With the tension between the two sets of rights, religious freedom and sexual autonomy, I suspect Kennedy sides with autonomy. Though, I could, as many continually remind me, be wrong.