Yesterday, the Supreme Court heard oral argument in the latest round of lawsuits to reach the nation’s highest court dealing with the contraceptive coverage mandate issued by the Department of Health and Human Services pursuant to the Affordable Care Act and the claims of certain employers that providing such coverage is a violation of their religious liberty as guaranteed by the Religious Freedom Restoration Act, returning the Justices once again to the issues they last dealt with in Burwell v. Hobby Lobby. The issues in these cases, though, are somewhat different from those the Court dealt with two years ago and, thanks to the vacancy created by the death last month of Justice Antonin Scalia, it’s unclear that the Court will be able to come to any sort of consensus that would be sufficient to allow for a majority opinion:
WASHINGTON — The Supreme Court weighed moral theology and parsed insurance terminology on Wednesday in an extended and animated argument that seemed to leave the justices sharply divided over what the government may do to require employers to provide free insurance coverage for contraception to female workers.
A 4-to-4 tie appeared to be a real possibility, which would automatically affirm the four appeals court decisions under review.
All four ruled that religious groups seeking to opt out of the requirement that they pay for the coverage must sign forms and provide information that would shift the cost to insurance companies and the government. A tie vote in the Supreme Court would not set a national precedent, and religious groups in different parts of the country would have conflicting obligations if they object to covering contraception.
Other appeals courts have also agreed that the accommodation offered to religious groups is lawful. But the United States Court of Appeals for the Eighth Circuit, which hears cases from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled that it violated the Religious Freedom Restoration Act of 1993.
Wednesday’s case grew out of a regulation requiring many employers to provide the coverage for contraception under the Affordable Care Act. Religious institutions like schools and churches have said that forcing them to comply with that violates the religious freedom law. They also objected to an alternative offered by the government that would allow them to opt out of the requirement by completing a form.
The court’s four more liberal members appeared ready to endorse that alternative.
“There has to be an accommodation,” Justice Ruth Bader Ginsburg said. “And that’s what the government tried to do.”
But it appeared unlikely that the liberal justices would be able to attract the crucial vote of Justice Anthony M. Kennedy, who repeatedly questioned whether the accommodation was making the groups “complicit in the moral wrong” by hijacking their insurance plans.
Though Justice Clarence Thomas asked no questions, there was little doubt where the three more conservative justices stood. Justice Samuel A. Alito Jr., for instance, citing arguments in supporting briefs, said the government’s approach represented “an unprecedented threat to religious liberty in this country.”
Much of the argument concerned whether the government could provide free contraception coverage without using the groups’ insurance plans. Justice Alito suggested, for instance, that the government could use the insurance exchanges created under the Affordable Care Act.
The burden on women would be minimal, Justice Alito said. “So she’ll have two insurance cards instead of one,” he said.
But Justice Sonia Sotomayor said it was important to make obtaining coverage easy.
“When contraceptives are provided to women in a seamless way,” she said, “the number of unintended pregnancies dramatically falls, as does the number of abortions.”
Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said Justice Alito’s alternatives would be cumbersome and would not “come anywhere close to being equally effective in ensuring that women get this coverage.”
Chief Justice John G. Roberts Jr. seemed to view that answer as a major concession.
“Your compelling interest is not that women obtain the contraceptive services,” the chief justice said. “Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by” the religious groups.
“The petitioner has used the phrase ‘hijacking,’ and it seems to me that that’s an accurate description of what the government wants to do,” Chief Justice Roberts said.
But Justice Stephen G. Breyer said a cumbersome process involving two insurers would dissuade some women from obtaining contraception. He added that “this is not hijacking because there is a federal regulation that says the infrastructure of the insurers’ contraceptive-related plan belongs to the insurer, not to the person who buys the insurance.”
Mr. Verrilli agreed, saying the alternatives would “result in significantly less use of medically necessary services.”
The answer did not seem to satisfy Justice Kennedy. “That’s why it’s necessary to hijack the plans,” he said caustically.
“The church plans here, religious organization plans here, are, in effect, subsidizing the conduct that they deemed immoral,” Justice Kennedy said.
Paul D. Clement, a lawyer for the order of nuns the Little Sisters of the Poor and other challengers, said his clients should be entitled to the outright exemption offered to houses of worship like churches, temples and mosques. Houses of worship do not have to file any paperwork if they choose not to provide contraception coverage.
He added that many other employers were also effectively exempt from the contraception requirement. Small employers need not offer health coverage, and some insurance plans that had not previously included contraception coverage are grandfathered, so long as they do not make substantial changes.
Chief Justice Roberts said the argument had force: “If you have a lot of exemptions, it undermines your argument that this is such a compelling interest.”
Mr. Verrilli said, “No line is perfect, and I’m sure this line isn’t perfect.” But he said the government had drawn sensible and commonplace distinctions.
Justice Breyer questioned Noel Francisco, a lawyer for a second group of challengers, describing a federal program filled with haphazard exemptions and asking whether it would violate the religious freedom law.
Mr. Francisco said sure.
“O.K.,” Justice Breyer said. “I’ve just described to you the United States tax code.”
On this point, at least, Justice Kennedy seemed to take the government’s side. “It’s going to be very difficult for this court to write an opinion which says that once you have a church organization” entitled to an exemption, “you have to treat a religious university the same.”
All of the justices who addressed the issue agreed that the challengers’ religious objections were sincere. But the more liberal ones said a pluralistic society required compromise.
“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,” Justice Breyer said. “Think of the Quakers who object to Vietnam. Think of the people who object to laws protecting blasphemy. Think of the people who object to shoveling the snow in front of the walk that will lead to the abortion clinic.”
The more conservative justices were more apt to credit the challengers’ objections. “You’re saying,” Justice Kennedy told Mr. Verrilli, “‘Don’t worry, religions, you’re not complicit.’”
Lyle Denniston summarizes the argument:
The Obama administration had four Supreme Court Justices quite plainly on its side Wednesday in the latest fight over the new health care law, but that may be all that it had because there was no way to stop other Justices from thinking — and thinking negatively — about a single word: “hijacking.” In a real sense, the fate of the Affordable Care Act’s birth control mandate, at least for the near future, could well be bound up with that word.
“Hijacking” is what a long list of religious institutions that object for reasons of faith to contraceptive methods have used to describe what they say the federal government will do to their health-care plans as it moves toward providing free birth control to those institutions’ female employees and college students. And, if there was a startling moment during the ninety-four-minute hearing on Zubik v. Burwell, it came when Justice Anthony M. Kennedy deployed that word in obvious sympathy to those institutions.
On an eight-member Court, with the late Justice Antonin Scalia not yet replaced, it was clear going into the Justices’ fourth review of a major controversy over the ACA that there was at least a possibility of a four-to-four split. Four Justices remain from the majority, and four from the dissent, in the ruling two years ago that limited the government’s power to provide free contraceptives to the employees of for-profit businesses with a limited ownership by religiously devout families objecting to some forms of ACA-mandated birth control.
But among the four in the majority in the Burwell v. Hobby Lobby Stores decision was Justice Kennedy, and he had made a considerable effort then to make that ruling seem quite narrow. In fact, in a separate opinion then, he openly endorsed the technique the government had used for non-profit religious institutions, to allow them to opt out of the birth-control mandate, and suggested it would work for for-profit companies, too. But that is the very “accommodation” approach that, on Wednesday, he labeled a form of “hijacking” of non-profits’ health plans.
It might be that, if that had been Kennedy’s only comment during the lengthy and high-spirited hearing, it might not have been so telling. But it was among a number of his other remarks and questions that appeared to show a significant concern for the ability of religious charities, hospitals and institutions to keep control of their own employee benefit plans. (He did make one passing comment that it would be hard for the Court to write an opinion that, if the government had provided an exemption for churches — as it does under the ACA birth-control mandate — the government had to exempt every other religious institution, too, But that skepticism was reserved for an alternative argument by the non-profits that the government’s differing treatment of religious institutions made no sense, and that argument seemed to attract little support on the bench.)
The written transcript of the hearing showed that “hijack” and “hijacking” were heard a total of seven times. It was first spoken by Washington, D.C., lawyer Paul D. Clement, early in a high-energy performance complaining about the government supposedly attempting to put his clients into the role of “conscientious collaborators” in the violation of their religious beliefs.
On the other side of the Court’s seeming divide on Wednesday, Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor left no doubt whatsoever that they were prepared to side with the government’s view of the perceived benign effect and operation of the ACA mandate. Justice Stephen G. Breyer spent a good deal of time expressing difficulty in drawing a line to define what was allowed or not allowed under the ACA mandate as it applied to religious institutions, but the thrust of much of his questioning seemed quite supportive of the government.
If those four do vote, when the Court takes up the case for discussion at this Friday’s private Conference, to uphold the ACA mandate, they may well find the Chief Justice and Justices Alito and Kennedy on the other side. (The chances are that Justice Clarence Thomas, who was part of theHobby Lobby majority two years ago, would be sympathetic to the religious institutions’ claims, although he said nothing on Wednesday.)
Such opposing alignments could mean the Court would vote four to four on the outcome. If the Justices concluded that that was the only option available to them as an eight-member Court, the effect would be to uphold the federal appeals courts’ decisions that the Court was reviewing on Wednesday; all had gone in favor of the ACA mandate. A four-four split would actually set no precedent and it would not resolve the existing conflict among appeals courts on the validity of the mandate under the Religious Freedom Restoration Act. Eight appeals courts have sided with the government, but one — the U.S. Court of Appeals for the Eighth Circuit — had ruled in favor of the religious non-profit institutions’ challenge to the ACA mandate.
What that would mean, at least in the short term, is that women who lived in the geographic areas of the eight federal appeals courts that have upheld the mandate could begin to receive free contraceptives under the mandate, perhaps until the Supreme Court could in the future take up the question again. The government has appealed Eighth Circuit’s ruling against the contraceptive mandate to the Justices, and the Court could turn to that next.
But, with the prospect that the Scalia seat would remain open for some period of time amid squabbling between the White House and the Senate over who would succeed Justice Scalia, there would not be much prospect for the Court to do better than a four-to-four split on any new case testing the mandate’s legality. That would leave the rather bizarre effect that the mandate was in effect in much of the nation, but not in the seven states that are located in the Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota.
These cases are notably different from Hobby Lobby and the other cases that were first filed by business owners who claimed that they were being asked to violate their religious beliefs via the mandate that they provide insurance coverage that include drugs that they contended act not only as birth control but also act to effectively induce abortion because of the manner in which they worked. In those case, the Federal Government was taking the position that its public interest in ensuring access to birth control outweighed the claims under RFRA that employer’s religious liberty was being violated. Thanks in no small part to the broad manner in which the RFRA law was written, this argument by the Federal Government proved to be unconvincing to the Court’s majority and the Court ruled that RFRA did indeed bar the government from requiring certain privately held for-profit businesses from providing birth control coverage if doing so would violate their religious beliefs. As I said at the time, the outcome appeared to me to be a correct application of RFRA to the facts of that case, even though there was a strong argument that RFRA laws themselves are unconstitutional.
In any case, in these cases the Court is dealing with religious institutions that run non-profit institutions such as nursing homes in which they employ outside employees and, to the extent required by the PPACA, provide health insurance coverage to those employees. Given the fact that purely religious institutions such as churches are already exempt from the mandate and other PPACA provisions, the Federal Government decided to provide exemptions for these quasi-religious institutions that would remove the burden of paying for contraceptive coverage from the employer and shift it to the the insurance company. The only thing that the religious institution is employer is required to do in cases such as this is fill out a form attesting to the fact that they are claiming a religious exemption from the mandate and the Federal Government will then work with the insurance company to provide the contraceptive coverage directly to the employer. The Plaintiff’s in these cases claim, though, that even the act of filling out a form is somehow a violation of their religious liberty because it somehow makes them complicit in sinful activity. As I said when the Court first accepted the appeals in these cases, this is an argument that has never made any real sense to me. Even if you accept the argument that providing coverage for contraceptives is a violation of the religious beliefs of these institutions, it’s hard to see how filling out a form is also a violation of those beliefs or that it rises to the level of the kind of protection that RFRA laws were designed for. Instead, it seems clear to me that filling out the form and having the cost of the coverage picked up by the insurance company is exactly the kind of reasonable accommodation that that RFRA was designed to encourage.
Even before yesterday’s argument, it was apparent that this case would be one of the many that the Court had yet to hear in which Justice Scalia’s absence would have an impact. If Justice Kennedy’s questions are any indication, it would appear that he does not view the form as a sufficient accommodation of the Plaintiff’s religious beliefs and that he has been persuaded by the argument the Plaintiff’s made in their briefs that the government’s accommodation effectively involves a “hijacking” of the Plaintiff’s insurance plans, and argument that doesn’t really make any sense at all to me. Assuming that these questions were a real indication of Justice Kennedy’s views of the case, then we are guaranteed a 4-4 tie which, at least in these cases would mean that the Plaintiff’s lose and they would either be required to fill out the form or provide coverage for contraceptives. As noted above, though, this outcome would have no impact outside the four cases involved and the Circuits in which they were decided by the respective Courts of Appeal. There are other cases out there dealing with this same issue that would continue to move forward, including one in which the Eighth Circuit Court of Appeals ruled in favor of the Plaintiffs, and all of these would be unaffected by the outcome in the Supreme Court. The Justices are no doubt aware of this fact, but there’s little that they can do about it. One option would be to punt these cases for re-argument at the next term, perhaps along with whatever related cases might reach the Court between now and then, in the hope that the vacancy in the Court’s number will be filled by then. With the Senate refusing to act on any nomination until after the next President is inaugurated, though, it could be a year or more before a new Justice joins the ranks of the Court. Given that, it’s entirely unclear what the Justices will do with a high profile case like this, but it’s clear that this is an issue they’ll have to deal with again in the future no matter what they decide to do.
Here’s the transcript of yesterday’s argument:
