POLITICS
03/23/2016 01:02 pm ET Updated Mar 23, 2016

Supreme Court Sharply Conflicted On Whether Religious Freedom Trumps Contraception Access

The justices asked hard questions in the sequel to 2014's Hobby Lobby case.
An order of Catholic nuns and other religious nonprofits want the Supreme Court to rule that having to opt out of a cont
Mark Wilson via Getty Images
An order of Catholic nuns and other religious nonprofits want the Supreme Court to rule that having to opt out of a contraceptive coverage requirement violates their religious beliefs.

WASHINGTON -- The Little Sisters of the Poor and other religious groups want the Supreme Court to free them from the government's requirement that they sign a form to opt out of providing contraceptive coverage to the women who work for them.

Without the late Justice Antonin Scalia on the bench, the court on Wednesday heard their pleas in a contentious hearing -- likely to lead to an even split along ideological lines -- in which the groups' claim to religious freedom was pitted against the Affordable Care Act’s requirement that female employees have wide access to contraceptive services.

The law is now facing its fourth big test before the justices, in a set of consolidated cases, known as Zubik v. Burwell, that could turn out to be a landmark for how the government draws lines for who must comply with generally applicable statutes and who is exempted from compliance based on their sincerely held beliefs.

These nonprofits "can adhere to their religious beliefs and pay millions of dollars in penalties," their lawyer, Paul Clement, argued, "or they can take steps that they believe to be religiously and morally objectionable, and that the government deems necessary, for them to provide contraception coverage through their health care plans."

The challengers claim that these steps -- which amount to an opt-out form the Obama administration is making the groups fill out to indicate their opposition to contraception -- violate their beliefs under the Religious Freedom Restoration Act, a law that was also the linchpin of 2014’s controversial Hobby Lobby decision.

At Wednesday's hearing, the act of signing the form was repeatedly referred to as "objecting to objecting" -- leading some of the liberal justices to wonder if there's a workable principle to guide future religious objectors.

"Your theory of the case says that everything depends on a person coming in saying, 'This is against my religion,' and that being the end­-all and the be­-all," Justice Elena Kagan said.

Drawing parallels to Quakers, Christian Scientists and other groups that may object to doing things that the law would otherwise penalize them for not doing -- like paying taxes or reporting accidents -- Justice Stephen Breyer wondered if there was a stopping point to the objectors' argument.

"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," he said.

"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 Stephen Breyer

Zubik is a sort of sequel to the Hobby Lobby case, in which the then-five conservatives on the Supreme Court sided with a closely held corporation whose religious owners wanted similar exemptions under Obamacare's contraceptive requirements.

In light of that decision and regulations developed by the Department of Health and Human Services, the government provided religious groups who aren't otherwise exempt from the law's contraceptive requirement -- like churches and synagogues -- an accommodation: the form they now object to, which allows the federal government to coordinate coverage for the affected employees with a third-party insurance provider.

Chief Justice John Roberts -- who has twice voted to uphold President Barack Obama's health care law but ruled in favor of the crafts chain Hobby Lobby in 2014 -- seemed in the end to fall on the side of the religious groups. 

For Roberts, the emphasis was the law seemingly "hijacking" the religious groups' health plans. "It seems to me that's an accurate description of what the government wants to do," he said.

Zubik, on the whole, seemed to Roberts and the other conservatives to be less about female workers unable to obtain contraceptive coverage from their religious employers, and more about the government taking over the groups' ability to manage their own affairs.

Members from the Little Sisters of the Poor speak to the press following Wednesday's oral arguments at the Supreme Court.
Mark Wilson via Getty Images
Members from the Little Sisters of the Poor speak to the press following Wednesday's oral arguments at the Supreme Court.

The four liberal justices came down strongly on the side of the federal government, which means that the final outcome will once again depend on Justice Anthony Kennedy. The centrist judge, who is Catholic, appeared conflicted during the hearing by the "burden" the nuns and other religious groups face in objecting to providing coverage.

He suggested the groups "are in effect subsidizing the fact that they're being immoral."

But earlier in the session, Kennedy seemed put off by the suggestion that any organization that is not a church yet claims to need religious workarounds, like a Christian college, must be given the same kind of deference under the law.

"It's going to be very difficult for this court to write an opinion which says that once you have a church organization, you have to treat a religious university the same," Kennedy said. "I just find that very difficult to write."

Justice Samuel Alito, for his part, said the administration's methods amounted to "an unprecedented threat to religious liberty in this country." In the Hobby Lobby decision, which he authored, he seemed to sanction the kind of accommodation the religions groups now oppose.

Toward the end of the hearing, and with some members from the Little Sisters of the Poor present in the courtroom, Clement, their lawyer, warned the Supreme Court that if their objections to the government's opt-out mechanism are rejected, their faith would be burdened and they'd be complicit in sinful behavior.

“My clients would love to be conscientious objectors, but the government insists that they be a conscientious collaborator,” Clement said. “There is no such thing.”

If the court were to split 4-to-4, as it did Tuesday for the first time since Scalia's death, that means the prior rulings in all five cases -- coming from different appellate courts across the country -- will control. The Obama administration prevailed in all of them. In other cases the Supreme Court didn't agree to hear, the government won against the religious objectors in all but one of them.

But the issue could return again to the Supreme Court at a later time, perhaps when the Senate confirms a replacement for Scalia -- who was still alive when the justices first agreed to hear these cases.

A decision in Zubik v. Burwell is expected sometime before the end of June.

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