The U.S. Supreme Court appeared sharply divided last week in a major showdown over whether religious schools, colleges, and other groups must take action if they seek to opt out of providing contraceptive care to their female employees or students under the Affordable Care Act.
During oral arguments in the case, Chief Justice John G. Roberts Jr. repeatedly referred to the federal government as “hijacking” the insurance plans of religious employers to force them to be complicit in the contraceptive coverage.
“It seems to me that that’s an accurate description of what the government wants to do,” Roberts said.
When Justice Anthony M. Kennedy, late in the March 23 arguments, picked up on the idea of a government “hijack” of religious employers’ health plans, it appeared the court, with the vacancy left by the death of Justice Antonin Scalia, was headed for a 4-4 tie in the group of cases known as Zubik v. Burwell (No. 14-1418).
That would leave lower-court rulings in place. All but one of the nine federal appeals courts to have ruled on the issue have sided with President Barack Obama’s administration by holding that an accommodation offered to religious employers does not violate their religious-freedom rights.
The case stems from the Affordable Care Act’s requirement that most large employers must offer group health plans with “minimum essential coverage,” which has beeninterpreted by the U.S. Department of Health and Human Services to include coverage of contraception.
Churches and some other religious organizations (church auxiliaries and the religious activities of religious orders) are exempt from the contraceptive mandate, but HHS declined to exempt many other religious employers, including schools, colleges, nursing facilities, and other nonprofits.
Under the disputed accommodation, those organizations must opt out of the program by informing the federal government in writing of their religious objections or face fines.
The religious groups, which have moral objections to offering certain forms of contraception, contend that the government’s accommodation would make them complicit in providing such care.
“The problem is, we have to fill out a form, and the consequence of filling out that form is that we are being treated differently” from the churches and other groups that are categorically exempt, Paul D. Clement, the lawyer representing the Little Sisters of the Poor Home for the Aged, a religious employer that is not exempt, told the justices.
Eight members of the Little Sisters order were present in the courtroom for the 90-minute argument, and hundreds more nuns demonstrated outside the court building, along with a smaller number of supporters of the administration.
Noel J. Francisco, the lawyer representing Roman Catholic schools in the dioceses of Washington, Pittsburgh, and Erie, Pa., sought to point out an inconsistency in how the government treats such schools for the purposes of either the exemption or the accommodation.
The point, as explained in his brief, is that some Catholic schools have to comply with the mandate and others don’t, based on how they are organized within their dioceses. (Some are part of the main organizational structure of the diocese, and some aren’t.)
Roberts returned to that point by noting that Catholic Charities of Pittsburgh had to comply with the contraceptive mandate, while Catholic Charities of Erie was exempt.
U.S. Solicitor General Donald B. Verrilli Jr., defending the mandate, said: “The government made a judgment that as a categorical matter, it wasn’t willing to extend the exemption to all religious nonprofits, as was requested, but it, instead, woulduse this accommodation, which we thought was the best way that we could ... protect their religious liberty.”
Justice Samuel A. Alito Jr. also was sympathetic to the religious employers.
‘A Compelling Interest’
“This is a case in which a great array of religious groups ... have said that this presents an unprecedented threat to religious liberty in this country,” Alito said, referring to the opt-out requirement.
Justice Clarence Thomas didn’t ask any questions, but his past positions on the Affordable Care Act in the 2014 decision known as Burwell v. Hobby Lobby Stores Inc., which allowed closely held companies to opt out of the contraceptive mandate, suggest he would side with the religious employers as well.
The court’s liberal bloc, which dissented in Hobby Lobby, appeared toside with the government.
“I thought there was a very strong tradition in this country, which is that when it comes to religious exercises, churches are special,” Justice Elena Kagan told Francisco. “And if you’re saying that every time Congress gives an exemption to churches and synagogues and mosques, that they have to open that up to all religious people, then the effect of that is that Congress just decides not to give an exemption at all.”
Justice Ruth Bader Ginsburg said the government “has another interest at stake.”
“As you know, the original health-care plan did not provide these covered services for women, and [the government] saw a compelling interest there, a need that was marginally ignored up until then,” she said, referring to the HHS rules that require contraceptive coverage.
A ruling is expected by late June.
A version of this article appeared in the March 30, 2016 edition of Education Week as High Court Weighing Birth-Control Mandate