A short-handed Supreme Court will hear oral arguments Wednesday in a landmark case that could have lasting ramifications for healthcare access and religious liberty.
The court is scheduled to hear oral arguments in the case Zubik v. Burwell Wednesday morning. The case boils down to a clash between religious liberty and Obamacare’s mandate that insurers and employers provide free birth control.
The Obama administration exempts religious organizations such as churches from having to provide birth control to their employees. However, that exemption doesn’t apply to religious nonprofits such as charities, universities and nursing homes.
Instead, they must abide by a compromise called an accommodation, in which the administration has the insurer pay for the birth control instead of the employer.
Thirty-seven religious nonprofits argue that the accommodation violates their religious beliefs. They say that by adhering to the accommodation, the health plans are a vehicle for providing birth control to employees and thus violate the employer’s beliefs.
The group includes the Catholic charity Little Sisters of the Poor. Some of the nuns who run the charity attended Obama’s last State of the Union address as guests of House Speaker Paul Ryan.
The 37 groups argue that the accommodation also violates the Religious Freedom and Restoration Act of 1993, which was passed to preserve the free exercise of religion.
The law says that an individual has to prove that an action by the government puts a “substantial burden” on their religious freedom, said Marci Hamilton, law professor at Yeshiva University, speaking at a briefing sponsored by the nonprofit Kaiser Family Foundation.
The groups say that the accommodation is such a burden under the 1993 law.
The administration argues in court filings that when Congress passed Obamacare it specifically called for the law to cover a preventive measure for women’s health. That was to remedy a problem that women were paying more out of pocket than men for preventive services. It also argues that the accommodation is a good compromise for religious nonprofits.
The court has ruled on the birth control mandate before, and that ruling could yield clues to how Wednesday’s case will go.
In 2014, the court voted 5-4 that closely held for-profit companies could get the accommodation to not provide birth control.
The ruling in that case, Hobby Lobby v. Burwell, was broad and could affect the Zubik ruling, Hamilton said.
“The court read the phrase ‘substantial burden’ as though ‘substantial’ had been removed,” she said.
She said the ruling found that if the government picks up the tab for birth control, there is no burden on the employer.
What makes the Zubik case interesting is that the nonprofits are challenging the compromise, Hamilton noted.
But an important development since that case is the recent death of conservative stalwart Justice Antonin Scalia, leaving the court with only eight justices.
A justice to watch is swing vote Anthony Kennedy, who voted for Hobby Lobby in the case.
Kennedy said that the ruling in that case wasn’t as broad as the dissenting justices in the court’s liberal wing thought.
Kennedy wrote in a concurring opinion that he was in favor of the accommodation compromise, foreshadowing how he could rule in the Zubik case.
However, if Kennedy joins the conservative wing of the court and the liberal wing votes in favor of the administration, that would result in a 4-4 split. In that circumstance, the lower court’s ruling would stand.
The Zubik case, however, is not just one case. It is a group of similar cases that have been making their way through lower courts across the country.
Lower courts have made nine separate rulings, backing the government eight times and the plaintiff just once. That case was in the Eighth Circuit Court of Appeals and involved Dordt College and Sharpe Holdings, a collection of businesses that are part of a planned religious residential community called Heartland.
A split decision means there would be no national implications.
“If it is not a 5-3 decision then the fight will have to be argued and decided another day, which is why Scalia’s replacement is crucially important,” Roger Servino, director of the Devos Center for Religion and Civil Society at the Heritage Foundation, told the Washington Examiner.
Servino said if the court strikes down the accommodation it would be a “tremendous victory” for religious liberty.
Hamilton, however, said such an decision could affect how people get birth control.
“One possible precedent is religious objectors will be able to limit independent third-party action,” she said. “It doesn’t matter if you are a Jew working at Notre Dame [one of the plaintiffs], you could have your decisions about birth control and the costs of it determined by the faith of your employer.”
A decision for either side also could have lasting ramifications on other challenges to the birth control mandate, one expert said.
“The ruling may set the stage for next round of litigation by religious for-profit firms to determine whether an accommodation is a valid option for them,” said Laurie Sobol, a senior analyst with Kaiser Family Foundation, during the briefing.
A decision is expected in June.
