Supreme Court Appears Divided on Contraceptive Coverage, with Kennedy Raising Concern

The U.S. Supreme Court was divided during a tense oral argument Wednesday over whether religiously affiliated organizations such as universities, hospitals and charities should be exempt from the Affordable Care Act’s mandate that employees receive contraceptive coverage.

The court’s four liberals were supportive of the Obama administration’s position that it has offered an acceptable accommodation for such organizations that respects their beliefs and ensures that women receive the coverage they are entitled to under the law.

The accommodation requires the groups to state their objections and then allows the government to work with the groups’ insurers to provide the coverage without the organization’s involvement or financial support.

But the justice who could provide a fifth vote in the administration’s favor, Anthony Kennedy, expressed doubts. He told Solicitor General Donald Verrilli Jr. that it sounded as if the challengers were right in their allegation that the government was “hijacking” their insurance plans to provide contraceptive coverage rather than finding a way to provide the coverage without involving the groups at all.

That was also the theme of the questions from two conservatives, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. “They think that complicity is sinful,” Roberts said. Washington lawyer Paul Clement, representing a charity called Little Sisters of the Poor that cares for the elderly, said the government was not allowing the group to be “conscientious objectors.”

“The government insists they be conscientious collaborators,” Clement said in closing his argument.

Justice Sonia Sotomayor was representative of the liberal justices. They indicated that the administration’s accommodation insulated the religious groups. If everyone who felt laws violated their beliefs could exempt themselves, Sotomayor said, “how will we ever have a government that functions?”

Justice Elena Kagan said the groups “were objecting to objecting.”

With the death of Justice Antonin Scalia, the court is operating with eight members. If they deadlock, it will mean the law is administered differently depending on where the organizations and their employees are located.

The mandate has been upheld by eight of the nation’s regional appeals courts that have decided the issue and overturned in one.

The justices could also call for the case to be reargued when the court has its full nine members. But no one knows when that will be.

The case is something of a follow-up to 2014’s decision in Hobby Lobby v. Burwell that relieved religiously objecting owners of certain businesses from providing contraceptive coverage to their employees.

In that case, Kennedy suggested that the government had erred in not providing an accommodation for the owners. The Obama administration says it has provided the organizations with an easy way out. Employers who object must make their religious objections clear by signing a form or sending a letter and then let insurance companies and the government take over from there.

But the groups say that even that step would implicate them in sin and that they face ruinous fines if they refuse to comply. They want to be included under the same blanket exemption from providing the coverage that the government has extended to churches and other purely religious groups.

During Wednesday’s arguments, Kennedy and the liberal justices worried that would be exempting too many people. Kennedy specifically mentioned universities, which provide insurance coverage to their students, faculty and staff.

The court accepted seven cases from throughout the country, including one challenge involving the Roman Catholic Archdiocese of Washington and the one from the Little Sisters of the Poor.

As in Hobby Lobby, the complaint is that the contraceptive mandate implemented by the Department of Health and Human Services violates the Religious Freedom Restoration Act.

The RFRA says the government must have a compelling reason for laws and programs that substantially burden religious beliefs, and even then government must prove that the law is the least burdensome way of achieving its goal.

Roberts and Alito said women could receive contraception in other ways — by buying insurance elsewhere or even through one of the exchanges under the Affordable Care Act.

Roberts said that would be taking the burden from the religious organizations to sign something they believe implicates them in sin.

But Verrilli said that would be contrary to Congress’s plan that women receive all preventative care in a seamless fashion from their insurance. Besides, there are no insurance policies just for contraception.

Alito tartly wondered whether Verrilli was saying the exchanges were unwieldy.

Kennedy said it sounded as if the charities would be subsidizing “conduct they deem as immoral.”

But Verrilli replied there was no cost to the religious organizations. He said the accommodation was the best way to both comply with RFRA and provide the kind of care Congress wanted women to have when it passed the health care law.

Justice Ruth Bader Ginsburg reinforced Verrilli’s argument that it was easier for the groups to sign a form objecting than require a woman to go out and find additional coverage. Sotomayor said there was no question that no-cost contraceptive care reduced unwanted pregnancies and abortions.

And Justice Stephen G. Breyer told attorneys for the challengers that he was having trouble seeing how their clients’ complaints were different from those who object to paying taxes because the money could be used for war.

In the current litigation, most appeals courts have ruled that the government work-around suffices.

“All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form,” Judge Cornelia Pillard said when the case involving the Washington Archdiocese came before the U.S. Court of Appeals for the District of Columbia Circuit. “Religious nonprofits that opt out are excused from playing any role in the provision of contraception services, and they remain free to condemn contraception in the clearest terms.”

But several prominent conservative judges have protested the rulings, and in September, the U.S. Court of Appeals for the 8th Circuit, in St. Louis, became the first to rule against the government.

In a case involving a college and a religious charitable organization, Judge Roger Wollman wrote for a unanimous appellate panel that the issue is whether the groups “have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute.”

The cases accepted are Zubik v. Burwell, Priests for Life v. Department of HHS, Roman Catholic Archbishop of Washington v. Burwell, East Texas Baptist University v. Burwell, Little Sisters of the Poor Home for the Aged v. Burwell, Southern Nazarene University v. Burwell and Geneva College v. Burwell.