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Court appears divided on contraceptive coverage, with Kennedy raising concern Court appears divided on contraceptive coverage, with Kennedy raising concern
(about 5 hours later)
The 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 Supreme Court split during a tense oral argument Wednesday that pitted religious liberty against women’s access to contraceptive coverage, raising the possibility that the now eight-member court would deadlock on a key component of the Affordable Care Act.
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 court’s four liberals seemed to agree that the Obama administration had offered an acceptable compromise for religiously affiliated organizations such as universities, hospitals and charities that want to be freed from the obligation to supply their female employees with no-cost contraceptive coverage, which they say violates their religious beliefs.
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. The accommodation requires the groups to tell the government they object, then allows the government to work with the groups’ insurers to provide the coverage without the organization’s involvement or financial support.
[Supreme Court accepts challenge to contraceptive mandate]
But the justice who could provide a fifth vote in the administration’s favor, Anthony M. Kennedy, expressed doubts.But the justice who could provide a fifth vote in the administration’s favor, Anthony M. Kennedy, expressed doubts.
He told Solicitor General Donald B. 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.He told Solicitor General Donald B. 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 G. Roberts Jr. and Justice Samuel A. Alito Jr. “They think that complicity is sinful,” Roberts said. The hearing provided a vivid illustration of the difficulty the court — without Justice Antonin Scalia, who died last month — might have putting together the necessary five-member majority to decide its most important cases.
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.” In this case, it would mean the national law that has transformed health-care coverage would be implemented differently depending on where the organization and its employees are located.
“The government insists they be conscientious collaborators,” Clement said in closing his argument. An inability to decide the case would mean the lower courts’ decisions would remain in place. The mandate has been upheld by eight of the nation’s regional appeals courts that have decided the issue and overturned in one.
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?” And along with the contraceptive controversy, cases involving abortion, affirmative action and President Obama’s deportation plan all await decisions from the divided, eight -member court.
Justice Elena Kagan said the groups “were objecting to objecting.” [Scalia’s death flips Supreme Court dynamics, hurts conservative majority]
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. Kennedy’s comments at oral arguments are not always indicative of his eventual votes, and the justices have months to come up with a compromise that could attract five members. It seems likely the court will work hard at that, but it could also choose to rehear the case with a full court, although no one knows when that would be.
The mandate has been upheld by eight of the nation’s regional appeals courts that have decided the issue and overturned in one. Women’s groups and the Obama administration hope Kennedy will be the fifth vote on their side; he seemed content with groups receiving an accommodation in a case two years ago.
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. But on Wednesday his questions and comments were more in line with the court’s skeptical and outspoken conservatives, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
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. Said Alito, “This is a case in which a great array of religious groups — and it’s not just Catholics and Baptists and evangelicals but Orthodox Jews, Muslim groups, the Church of Jesus Christ of the Latter-day Saints, an Indian tribe, the Church of Lukumi Babalu Aye — have said that this presents an unprecedented threat to religious liberty in this country.”
[Supreme Court accepts challenge to contractive mandate] Roberts told Verrilli that the administration’s compromise still required groups to take actions that they think violate their beliefs. “They think that complicity is sinful,” Roberts said.
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. Washington lawyer and former George W. Bush administration solicitor general Paul D. Clement, representing an organization of Catholic nuns called Little Sisters of the Poor that cares for the elderly, said the government has not given the group a meaningful way to opt out.
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. “My clients would love to be a conscientious objector, but the government insists that they be a conscientious collaborator,” Clement said in his closing. “There is no such thing.”
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 liberal justices were equally insistent that the administration had found a way to recognize religious beliefs and provide women with the cost-free, preventative care that the law requires.
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 all things, it can’t be all my way,” Justice Ruth Bader Ginsburg told Clement. “There has to be an accommodation, and that’s what the government tried to do.”
Justice Stephen G. Breyer sounded a similar note.
“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. He added: “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. Think of the Christian Scientists who know when they report the accident, the child will go to the hospital, or the adult, and receive medical care that is against their religion.”
Wednesday’s 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.
[ Court: Religious business owners don’t have to provide contraceptive coverage ]
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.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.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. In Hobby Lobby, Alito wrote in the majority opinion and Kennedy reiterated in a concurrence that the government had erred in not providing an accommodation for the owners.
But even the form-signing accommodation offered by the administration to the groups is not enough, the religious groups say. It would still implicate them in sin, they say, and they would face ruinous fines if they refused 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.
Clement said the government used the wrong standards in deciding which groups got the exemptions and which did not. His fellow counsel Noel Francisco told the court that the government could not prove providing the coverage was a compelling need, because it exempted churches and large plans that were grandfathered in with the law.
Justice Elena Kagan said that did not prove his point. “There’s not a law in town that doesn’t have exceptions,” she said.
And there is a long tradition that churches are different, she said. “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.”
Kennedy also signaled that was a problem. “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,” he said.
Roberts and Alito said women could receive contraception in other ways — the federal government could provide it, or they could buy insurance elsewhere, 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.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. But Verrilli said such contraceptive-only plans do not exist and are not allowed by law.
Alito tartly wondered whether Verrilli was saying the exchanges were unwieldy. But more than that, he said, it would be disrupting the scheme that Congress devised.
Kennedy said it sounded as if the charities would be subsidizing “conduct they deem as immoral.” “Even in that hypothetical world, that is not equally effective at achieving the government’s interest, because the whole point of this provision is that you get this care from your regular doctor as part of your regular health care without any barriers, including any co-pay barriers” he said.
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 T.L. 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 L. 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.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.