New York Times

Justices Seem Divided on Requirements for Birth Control Coverage

March 24, 2016

by Adam Liptak

WASHINGTON — The Supreme Court weighed moral theology and parsed insurance terminology on Wednesday in an extended and animated argument that seemed to leave the justices sharply divided over what the government may do to require employers to provide free insurance coverage forcontraception to female workers.

A 4-to-4 tie appeared to be a real possibility, which would automatically affirm the four appeals court decisions under review.

All four ruled that religious groups seeking to opt out of the requirement that they pay for the coverage must sign forms and provide information that would shift the cost to insurance companies and the government. A tie vote in the Supreme Court would not set a national precedent, and religious groups in different parts of the country would have conflicting obligations if they object to covering contraception.

Other appeals courts have also agreed that the accommodation offered to religious groups is lawful. But the United States Court of Appeals for the Eighth Circuit, which hears cases from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled that it violated the Religious Freedom Restoration Act of 1993.

Wednesday’s case grew out of a regulation requiring many employers to provide the coverage for contraception under the Affordable Care Act. Religious institutions like schools and churches have said that forcing them to comply with that violates the religious freedom law. They also objected to an alternative offered by the government that would allow them to opt out of the requirement by completing a form.

The court’s four more liberal members appeared ready to endorse that alternative.

“There has to be an accommodation,” Justice Ruth Bader Ginsburg said. “And that’s what the government tried to do.”

But it appeared unlikely that the liberal justices would be able to attract the crucial vote of Justice Anthony M. Kennedy, who repeatedly questioned whether the accommodation was making the groups “complicit in the moral wrong” by hijacking their insurance plans.

Though Justice Clarence Thomas asked no questions, there was little doubt where the three more conservative justices stood. Justice Samuel A. Alito Jr., for instance, citing arguments in supporting briefs, said the government’s approach represented “an unprecedented threat to religious liberty in this country.”

Much of the argument concerned whether the government could provide free contraception coverage without using the groups’ insurance plans. Justice Alito suggested, for instance, that the government could use the insurance exchanges created under the Affordable Care Act.

The burden on women would be minimal, Justice Alito said. “So she’ll have two insurance cards instead of one,” he said.

But Justice Sonia Sotomayor said it was important to make obtaining coverage easy.

“When contraceptives are provided to women in a seamless way,” she said, “the number of unintended pregnancies dramatically falls, as does the number of abortions.”

Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said Justice Alito’s alternatives would be cumbersome and would not “come anywhere close to being equally effective in ensuring that women get this coverage.”

Chief Justice John G. Roberts Jr. seemed to view that answer as a major concession.

“Your compelling interest is not that women obtain the contraceptive services,” the chief justice said. “Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by” the religious groups.

“The petitioner has used the phrase ‘hijacking,’ and it seems to me that that’s an accurate description of what the government wants to do,” Chief Justice Roberts said.

But Justice Stephen G. Breyer said a cumbersome process involving two insurers would dissuade some women from obtaining contraception. He added that “this is not hijacking because there is a federal regulation that says the infrastructure of the insurers’ contraceptive-related plan belongs to the insurer, not to the person who buys the insurance.”

Mr. Verrilli agreed, saying the alternatives would “result in significantly less use of medically necessary services.”

The answer did not seem to satisfy Justice Kennedy. “That’s why it’s necessary to hijack the plans,” he said caustically.

“The church plans here, religious organization plans here, are, in effect, subsidizing the conduct that they deemed immoral,” Justice Kennedy said.

Paul D. Clement, a lawyer for the order of nuns the Little Sisters of the Poor and other challengers, said his clients should be entitled to the outright exemption offered to houses of worship like churches, temples and mosques. Houses of worship do not have to file any paperwork if they choose not to provide contraception coverage.

He added that many other employers were also effectively exempt from the contraception requirement. Small employers need not offer health coverage, and some insurance plans that had not previously included contraception coverage are grandfathered, so long as they do not make substantial changes.

Chief Justice Roberts said the argument had force: “If you have a lot of exemptions, it undermines your argument that this is such a compelling interest.”

Mr. Verrilli said, “No line is perfect, and I’m sure this line isn’t perfect.” But he said the government had drawn sensible and commonplace distinctions.

Justice Breyer questioned Noel Francisco, a lawyer for a second group of challengers, describing a federal program filled with haphazard exemptions and asking whether it would violate the religious freedom law.

Mr. Francisco said sure.

“O.K.,” Justice Breyer said. “I’ve just described to you the United States tax code.”

On this point, at least, Justice Kennedy seemed to take the government’s side. “It’s going to be very difficult for this court to write an opinion which says that once you have a church organization” entitled to an exemption, “you have to treat a religious university the same.”

All of the justices who addressed the issue agreed that the challengers’ religious objections were sincere. But the more liberal ones said a pluralistic society required compromise.

“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 Breyer said. “Think of the Quakers who object to Vietnam. 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.”

The more conservative justices were more apt to credit the challengers’ objections. “You’re saying,” Justice Kennedy told Mr. Verrilli, “‘Don’t worry, religions, you’re not complicit.’”

The case, Zubik v. Burwell, No. 14-1418, is the court’s fourth encounter with President Obama’s health care law. It builds on a case from 2014, Burwell v. Hobby Lobby Stores, which said that requiring family-owned corporations to pay for contraception coverage violated the religious freedom law. Justice Antonin Scalia, who died last month, was in the 5-to-4 majority in that case.

The Little Sisters of the Poor, which operates nursing homes, objects to playing any role in providing any form of contraception approved for women by the Food and Drug Administration. Other challengers object only to covering intrauterine devices and so-called morning-after pills.

The religious freedom law says that government requirements placing a substantial burden on religious practices are subject to an exceptionally demanding standard of judicial scrutiny.

At the start of the argument, which lasted for more than 90 minutes rather than the usual hour, Justice Sotomayor asked how the case differed from prosecutions of conscientious objectors to war who refused to register with the government.

Mr. Clement saved his most direct response for the end of the argument.

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