The U.S. Supreme Court appeared divided during oral arguments (PDF) Wednesday in a challenge brought by religious not-for-profits that oppose having to play any part in providing birth control to employees as required under the Affordable Care Act.
If the justices ultimately split their vote 4-4, the decisions of lower courts—which don't all agree on the matter—will stand. If the court splits 4-4, it will also have to decide whether to address the issue again in the future. The justices will likely vote by the end of June.
The challenge, Zubik v. Burwell, revisits the ACA's contraception coverage mandate.
Religious not-for-profit groups can now opt out of that mandate by notifying their third-party insurance administrator, or providing information to HHS, so the government can arrange for other contraception coverage for the group's employees. The not-for-profits, however, say that any action taken to help their employees access birth control violates their religious beliefs.
The court's four most liberal-leaning justices are expected to side with the government, and the court's three conservative-leaning justices will likely side with the religious not-for-profits.
Justice Anthony Kennedy, often the court's swing vote, seemed skeptical of the government's arguments Wednesday.
Kennedy said if the religious groups truly feel that the notification makes them complicit in something they deem morally wrong, “then it seems to me that that's a substantial burden.”
Later, Kennedy also asked why the groups' employees can't just get contraception coverage elsewhere.
“If it's so easy to provide, if it's so free, why can't they just get it through another plan?” Kennedy asked.
The religious groups are trying to prove that the ACA rules are a substantial burden, that the government doesn't have a compelling interest in forcing them to use the accommodation, and that there are less restrictive ways for the government to make sure their employees get contraception coverage, such as through the ACA's insurance exchanges. The government, meanwhile, argues that it's not a substantial burden, and it has a compelling interest in making sure women can easily get contraception coverage.
The other justices' questions Wednesday seemed to affirm that they will likely vote as expected.
Justice Sonia Sotomayor, for example, questioned the idea that any action that conflicts with a religious belief is a substantial burden.
“When will any government law that someone claims burdens their practice ever be insubstantial?” Sotomayor asked. “If that's always going to be substantial, how will we ever have a government that functions?”
Chief Justice John Roberts, meanwhile, said it seems like the government is “hijacking” the insurance plans of the religious not-for-profit groups.
The groups "do not object to the fact that the people who work for them will have these services provided,” Roberts said. “They object to having them provided through the mechanism that they have set up because they think … that complicity is sinful.”
Kennedy again used the term “hijack” to describe how the government is using the religious not-for-profits' plans.
Despite the questioning, Leila Abolfazli, senior counsel with the National Women's Law Center, which filed a brief in the case siding with the government, said she believes it still has a chance of winning the case. She pointed to Kennedy's writings in the previous Hobby Lobby case from 2014. In Hobby Lobby, the Supreme Court ruled that the government cannot force closely held companies to cover birth control for their employees if their owners have religious objections.
Kennedy wrote a concurring opinion in that case agreeing that part of the reason to rule in favor of Hobby Lobby was because there were less restrictive ways to make sure its employees got birth control coverage than by forcing Hobby Lobby to provide it directly—such as the accommodation afforded to religious not-for-profits.
Kennedy also gave some hope to those siding with the government Wednesday when he said the court would have a hard time writing an opinion that would extend to all religiously-affiliated organizations—such as the groups in the case or universities—the same full exemption from the ACA's contraception coverage that it gives to churches.
Others, however, think it's unlikely the government will score a 5-3 victory in the case, based on the tenor of oral arguments.
“The questioning was encouraging because it highlighted how difficult a case it is for the government to make that it really needs to force the Little Sisters of the Poor to violate their beliefs when they exempt millions of other people from the mandate,” said Roger Severino, director of the DeVos Center for Religion and Civil Society with the conservative Heritage Foundation. Little Sisters is one of the groups challenging the government in the cases.
Elizabeth Sepper, an associate professor of law at Washington University, said before the oral arguments that she was hopeful the government would win, but now it looks like a 4-4 split is more likely. If that happens, the decisions of the lower courts will stand in the geographic areas they respectively cover. So far, eight federal appeals courts have ruled in favor of the government, and one has sided with the religious not-for-profits.
The Supreme Court will likely have to revisit the issue should it split evenly, she said. It could re-argue the cases in the future, or take up the matter with another case down the road.
“Once the court has nine members, they're going to have to decide this,” Sepper said. “You don't have a major federal law that applies differently in one area from another.”
She said such lack of uniformity could otherwise be difficult for employers with employees across multiple states.
