Supreme Court’s conservatives appear hostile to contraception compromise

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Demonstrators at the Supreme Court on Wednesday. (Photo: Jacquelyn Martin/AP)

The Supreme Court’s conservative wing — minus its firebrand, the late Antonin Scalia — appeared deeply skeptical Wednesday of the government’s argument that religiously affiliated nonprofits must allow their insurance companies to provide their female employees with birth control.

The case in question, Zubik v. Burwell, centers on the Affordable Care Act’s requirement that insurance plans provide contraceptives — including emergency contraceptives such as Plan B — to women without copays as part of preventive care.

The Obama administration exempted houses of worship and religious orders from this requirement, and created a separate accommodation for religiously affiliated nonprofits (e.g., Christian colleges) that says they can opt out of providing contraception as long as they inform the government. The government will then work directly with their insurers to offer contraceptives, using separate funds and communications, to their employees.

Dozens of groups sued over the accommodation, and seven of them consolidated their cases for this challenge, which reached the Supreme Court Wednesday.

The religious groups’ lawyer, Paul Clement, argued that in having to send a letter to the government providing their insurers’ names, his clients are complicit in the sin of providing contraceptives.

“The government treats that form as an authorization,” Clement said. “If we don’t provide the form, the coverage doesn’t follow.”

Several of the conservative justices appeared to agree with him, with Justice Samuel Alito calling the letter a “planned instrument.”

Justice Anthony Kennedy, the swing justice on the court, appeared swayed as well. He repeated the plaintiffs’ argument that the government was “hijacking” their insurance plans by arranging with their insurers to provide contraceptives to their employees. (The government counters that the birth control is offered in “parallel” to the groups’ plans, not a part of it.)

“Is this the least restrictive alternative?” Kennedy asked the government’s lawyer, Solicitor General Donald Verrilli.

Both Kennedy and Chief Justice John Roberts asked Verrilli if the government could offer free miniplans that provide birth control only to women who work for employers who won’t provide it to them. Roberts said it was just a question of “who does the paperwork” — the woman who wants access to birth control or her employer who objects to providing it to her. Roberts suggested that the “vital issue of faith” of the employer seemed more important than the “administrative burden” on a woman who wants birth control.

Kennedy appeared to agree. “If it’s so easy to provide [birth control], why can’t they just get them from another plan?” he asked.

Verrilli said the government would have to change the law to provide birth- control-only plans. He also argued that the government’s goal was for women to receive health coverage “seamlessly” — so they can get contraceptives from their regular doctor as part of their overall care.

The conservative justices also questioned whether the government has provided so many exemptions to the birth control requirement that it has negated its argument that the government has a compelling interest in providing it. About 25 percent of health care plans are grandfathered out of the requirement because they have not changed significantly since health care reform passed.

Verilli insisted that eventually 0 percent of the plans would be grandfathered, as employers inevitably made changes to their plans.

“Yeah, in the long run we’ll all be dead,” Alito said.

The court’s four liberals — Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer — questioned whether the religious groups were simply “objecting to objecting.” They essentially asked whether the religious groups felt that even saying they object amounts to a violation of their faith.

Sotomayor pointed out that religious objectors to war know that when they fill out an objector’s form, someone else will be drafted in their place. Their own objection to serving cannot extend to blocking the government from drafting others into service. Similarly, employers’ objections to birth control cannot prevent the government from arranging for their employees to have access to it.

Breyer repeatedly asked where the court should “draw the line” on religious objections. “Why do Quakers have to pay taxes for Vietnam?” he asked.

Scalia was one of the five justices who in 2014 decided that small, closely held corporations did not have to provide health care that includes contraceptives if doing so violates their religious beliefs. But with his death, a majority on this case is harder to fathom.

If the court is split 4-4 on the question, the lower courts’ decisions will stand, and women working for objecting nonprofits will have access to birth control through their plans depending on where they live. (Only the Eighth Circuit Court of Appeals struck down the requirement; the other circuit courts sided with the government.) It’s also very possible that the justices will send the case back down for re-argument, telling the lower court to address the issue of whether the government could offer a separate birth-control-only plan. That would avoid, or at least delay, a divisive and inconclusive decision on a controversial issue.

A decision is expected in June.