Supreme Court looks divided on birth control case

The case, Zubik v. Burwell, involves 37 religious nonprofits such as charities and universities that argue Obamacare’s birth control mandate violates their religious beliefs.

The administration created a compromise called an accommodation in which an insurer pays for the birth control coverage instead of the employer. However, the groups argued that the compromise is not enough as their plans are still complicit in employees receiving birth control, which violates their religious beliefs.

Perennial swing vote Justice Anthony Kennedy said the government could “hijack” religious nonprofits’ health plans under the accommodation compromise. Kennedy’s skepticism of the government’s argument heightens the possibility of a 4-4 split decision among the justices after the unexpected death of conservative Justice Antonin Scalia last month.

If there is a 4-4 split, the lower court rulings would stand. There have been nine rulings in the lower courts, with eight in favor of the government and one for the nonprofits. So a deadlock would leave a morass, with different rules applying in different parts of the country.

The court’s liberal wing appeared more receptive to the government’s argument that the accommodation compromise, which ensures the nonprofits don’t have to pay for birth control coverage for employees, is sufficient.

But the conservative justices’ questioning focused on the idea that the compromise does place a burden, namely that the nonprofits’ health plans can act as a vehicle for providing the birth control coverage.

The question before the court is whether the accommodation violates the Religious Freedom Restoration Act of 1993, which prohibits the federal government from placing significant burdens on a person’s exercise of religion.

The case will come down to two parts of the 1993 law: whether the accommodation is a “significant burden” and if the government has a “compelling interest” to provide the birth control coverage to workers through the accommodation.

The Little Sisters of the Poor and other nonprofits argued that the accommodation uses their healthcare plans to provide the birth control coverage. That means the groups are facilitating the coverage of birth control, which creates a burden for them.

The court’s conservative justices took aim at the government’s claim that the accommodation was not a burden.

Kennedy joined members of the conservative wing of the court in suggesting that it wasn’t a burden for employees of the nonprofits to get birth control coverage through the Obamacare exchanges in addition to their regular health plans.

U.S. Solicitor General Donald Verrilli responded that the worker has to find a plan that will cover her doctor and has to sign up for it, which can be a burden on the worker.

Verrilli said Congress and the administration intended for the birth control coverage to be seamless and not force the worker to get new coverage.

Kennedy said, however, that under that argument it is “necessary to highjack” the nonprofit’s plan to provide the new coverage.

Justice Samuel Alito echoed that sentiment, by saying that the plan is owned by the Little Sisters and they would have to agree to “putting something into their plan.”

Chief Justice John Roberts targeted the government’s argument that it has a compelling interest in providing the birth control coverage through the accommodation.

“If you have exemptions then [that] undermines there is a compelling interest,” Roberts said.

As usual, Justice Clarence Thomas did not ask any questions during the hour-and-a-half session.

Meanwhile, the court’s liberal justices of Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan openly questioned whether the accommodation was a burden. They found that the compromise sidesteps the groups from having to pay for the birth control coverage.

“It is not a substantial burden if someone else is going to do the action you are objecting to,” Sotomayor said.

Breyer noted that there are many instances when a religious organization may object to an action by the government.

“What is the line,” asked Breyer, referring to religious objections to government activities. He gave an example of Quakers who have to pay taxes to the government despite their opposition to the Vietnam War, asking whether their religious objections to the war exempts them from taxes that pay for it.

Ginsburg said that no one doubts the sincerity of the religious beliefs of the groups, but said there must be an accommodation for workers to get birth control.

Sotomayor hinted there is a compelling need for the accommodation as there is “plenty of evidence” to show that providing contraception can help to lower the rate of unintended pregnancies and abortions.

Noel Francisco, one of the plaintiffs’ attorneys, said the groups don’t know how many workers would lose contraception coverage if the groups win the exemption.

A decision is expected in June.

The oral arguments come about two years after the court ruled 5-4 in the case Hobby Lobby v. Burwell. The court voted that closely held, private for-profit companies can be eligible for the accommodation.