Catholic nuns and religious nonprofits that object to paying for employee contraceptives faced a deeply divided Supreme Court on Wednesday, as the liberal justices warned against allowing faith-based objections to stymie important government goals such as expanding access to women’s health care.
The court’s conservative wing said the government was “hijacking” the health care plans offered by the Little Sisters of the Poor and dozens of other religious charities that consider contraceptives to be sinful.
But the liberal justices said the Obama administration has taken steps to accommodate the groups’ objections and that there is a limit to how far the government can be pushed.
“As in all things, it can’t be all my way. There has to be an accommodation, and that’s what the government tried to do,” Justice Ruth Bader Ginsburg said.
The case, Zubik v. Burwell, marked the fourth time the court has weighed in on President Obama’s signature law, the Affordable Care Act, and the second time it has addressed the mandate requiring employers to pay for insurance that covers 20 types of contraceptives approved by the Food and Drug Administration.
Houses of worship were exempted, but other employers were not.
Devout business owners won a major battle at the Supreme Court in the 2014 Hobby Lobby decision, when the justices ruled 5-4 that family-owned corporations could opt out of coverage that they believe violates their religious beliefs.
Meanwhile, the Obama administration had been haggling with religiously affiliated nonprofits such as Catholic schools and hospitals.
After repeated objections by the faith-based groups, the administration announced a policy that exempted them from having to pay for coverage, but required them to sign a form signaling their objection. Once the form was signed, either the government or insurance companies stepped in to provide the coverage.
But the Little Sisters and other groups argued that the act of signing the form made them complicit in sin, particularly when it involves coverage of morning-after pills, which they equate to abortion. They said they should get the full exemption that houses of worship have.
The nonprofits lost most of their cases at the lower appeals court level, though one circuit court did side with them.
On Wednesday, the court’s female justices said they were reluctant to extend protections that are traditionally set aside for churches because they feared it would open up a Pandora’s box of requests for exemptions to other regulations.
Justice Sonia Sotomayor said conscientious objectors had to tell the government that they wouldn’t fight in war. Plus, the objectors could not prevent the government from finding fighters to replace them.
“Every believer that’s ever come before us, including the people in the military, are saying that my soul will be damned in some way,” Justice Sotomayor said. “I’m not naysaying that that is a very substantial perceived personal burden by them. But if that’s always going to be substantial, how will we ever have a government that functions?”
The Little Sisters’ attorney, Paul D. Clement, said this situation is different because the administration wants to use the “infrastructure” of the sisters’ plan so that another party can provide the coverage. It is as if the government asked a conscientious objector to name his replacement for the war, he argued.
“This is not an objection to objecting,” he told justices, saying it would be an equal, though clearer, outrage if the government set up a contraception clinic in the Little Sisters’ homes without forcing the nuns to pay for any of it.
The death of Justice Antonin Scalia last month loomed large over the proceedings. Without his vote, the religious groups are likely looking at a best-case scenario of a 4-4 split.
That would force the court to either list the case for re-argument with a full slate of justices or leave the lower court rulings in place, meaning religious nonprofits would have to sign the forms in some states and would be exempt in others.
A tie would also fuel the political fight over Judge Merrick Garland, who is Mr. Obama’s pick to replace Scalia. Senate Republicans have refused to consider the nominee, saying voters should decide in November who will make the Supreme Court appointment. Democrats contend that leaving a vacant seat until after the presidential inauguration is a dereliction of duty.
Wednesday’s arguments centered on the Religious Freedom Restoration Act of 1993. That legislation, signed by President Clinton, said the government couldn’t burden someone’s religious exercise unless it could demonstrate that it was furthering a compelling government interest and doing it in the least-restrictive way possible.
Justice Anthony M. Kennedy, the key swing vote, didn’t declare his leanings, though he seemed sympathetic to the nonprofits and pondered whether there was a better way to provide the drugs and services to their female employees.
Mr. Clement said the government could offer coverage either through subsidized plans on the Obamacare exchanges or through streams of federal funding.
Justice Samuel A. Alito Jr. said many people carry additional insurance cards — such as for dental or vision — so the exchanges seemed like a good route, though he joked that the Web portals were notoriously hard to use.
Solicitor General Donald B. Verrilli Jr. said the government doesn’t want to force women to pay for another health care plan. He also doesn’t know whether insurers will want to offer side plans that cover only birth control.
“The whole point of [the mandate] was to ensure that people who got health insurance would get the preventive services as part of their regular care from their regular doctor with no barriers,” he said.
Justice Clarence Thomas, a conservative who has voted repeatedly against Obamacare but rarely asks questions from the bench, remained silent, though Chief Justice John G. Roberts Jr. let everyone know where he stood.
The nonprofits “used the phrase ’hijacking,’ and it seems to me that that’s an accurate description of what the government wants to do,” he said.
The nonprofits appeared to need Justice Breyer, a liberal who sided with the administration in 2014, to switch sides to secure an outright victory, yet the justice struggled with their objections.
Members of peace-loving religious sects had to pay taxes that funded the Vietnam War, he noted, while Christian Scientists who report car crashes to police know that injured victims will receive hospital care despite their religious objections, so it is hard to comport sincere beliefs with the realities of a pluralistic society.
“Sometimes when a religious person who’s not a hermit or a monk is a member of society,” Justice Breyer said, “he does have to accept all kinds of things that are just terrible for him.”
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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