By Todd Ruger, CQ Roll Call
March 23, 2016 -- The Supreme Court appeared equally divided Wednesday on the latest challenge to the health care overhaul. Justices are split between the Obama administration's aim to provide contraceptive coverage to all women on one side and the objections of religious nonprofit groups on the other.
The case over the law's contraception mandate is closely watched by advocacy groups on both sides. Democratic lawmakers appeared at a women's rights rally outside the Supreme Court building before the oral arguments, while religious groups including many nuns protested next to them for religious rights.
Neither side would be completely satisfied by the apparent 4–4 split between the liberal and conservative wings of the shorthanded court, however, since the tie would leave the issue unresolved nationally. Such a decision would affirm the Obama administration's win on the issue in eight federal appeals courts, but also leave in place a conflicting decision from one federal appeals court.
The mandate in the Affordable Care Act requires most employers to offer birth control to their employees as part of health insurance coverage. Religious nonprofits can be exempted if they notify the government in writing—called an accommodation—and the government then arranges the coverage through the group's existing insurance plan at no cost to the group.
An attorney for the Little Sisters of the Poor, an organization of Roman Catholic nuns, and dozens of nonprofits argued that the accommodation makes them complicit in providing contraception. They contend the mandate violates the 1993 Religious Freedom Restoration Act (PL 103-141), or RFRA, which prohibits the government from substantially burdening the free exercise of religion. The justices must decide the case—the fourth to reach the high court concerning aspects of the 2010 law—before the end of the term in June.
Hijacking a Plan?
Paul Clement, the attorney arguing for the Little Sisters, told the justices that the government already exempts churches and religious groups without the need for an accommodation. The government drew that line without including groups like the Little Sisters, Clement said, and it's only because the nuns take care of the poor that they must do the accommodation.
Chief Justice John G. Roberts Jr. seized onto the idea that the government doesn't just want the groups to do paperwork, but seeks to "hijack" a religious group's existing plan to provide the contraceptive coverage instead of using another plan.
Justice Anthony M. Kennedy, thought to be a swing vote who could give the Obama administration a victory in the case, also used the word hijack to refer to the government's actions.
Roberts, Kennedy, and Justice Samuel A. Alito Jr. all asked why the government couldn't set up a second insurance plan to provide birth control coverage. Roberts said the women could go on federal and state health care exchange websites and buy health insurance.
Solicitor General Donald Verrilli Jr. pointed out that contraception-only plans are not available on the exchanges and the law would have to change to allow for them. Roberts replied: "Well, the way constitutional objections work is you might have to change current law."
Verrilli called that solution a "one-off, jerry-rigged channel" and told the justices that Congress included the mandate to remove as many barriers as possible for women to obtain contraceptive coverage. The accommodation is a "sensible balance" between the competing interests of the law and religious values, Verrilli said.
Role of Congress
The four liberal justices expressed the view that the accommodation was a necessary evil for living in a society with competing religious beliefs and laws. Justice Ruth Bader Ginsburg contrasted the burden of filling out a form to the burden of a woman who would have to seek out another insurance plan in order to obtain birth control.
"So as in all things, it can't be all 'my way,'" Ginsburg said. "There has to be an accommodation, and that's what the government tried to do."
Justice Stephen G. Breyer pointed out that the insurance plan belongs to the insurer and not a religious nonprofit. He said there are times when government interest trumps religious beliefs, such as using taxpayer money to shovel snow in front of an abortion clinic, or Quakers having to pay taxes for a Vietnam War they didn't morally support.
"Sometimes when a religious person who's not a hermit or a monk is a member of society, he does have to accept all kinds of things that are just terrible for him," Breyer said.
Justice Sonia Sotomayor said somebody has to tell the government who is eligible or not eligible for an exemption to the contraception mandate. She pointed out that unintended pregnancies and abortions go down when there is better access to contraceptive coverage.
And if there are too many exemptions allowed to government laws for religious objections, Sotomayor noted, "How will we ever have a government that functions?"
Justice Elena Kagan echoed that sentiment when it comes to Congress, and warned that the religious groups could be giving Congress reasons not to exempt churches in federal laws.
Congress often writes laws with exemptions for churches, Kagan said, but lawmakers might decide not to do so if it has to extend to all religious groups.
"These are terrible incentives to give a legislature, are they not?" Kagan asked Clement.
Government officials and legal groups also weighed in about the arguments.
Secretary of Health and Human Services Sylvia Mathews Burwell, speaking at a YMCA in Washington, D.C., to announce an expansion of diabetes prevention programs under Medicare, addressed the Supreme Court arguments being heard today. "We remain confident in our position," she said.
"We know what the issue is, which is an issue of balancing the important religious expression of people, at the same time as making sure we provide preventative healthcare to women that's needed. And we believe the accommodation we set out appropriately respects and takes into account those religious beliefs so that those can be protected, and at the same time provides coverage for those women for preventative care."