Supreme Court Dispatches

The Birth Control Hijack

The Supreme Court’s conservatives think the Affordable Care Act is hijacking insurance plans to provide contraception.

religious freedom.

Religious freedom supporters at a rally to praise the Supreme Court’s decision in the Hobby Lobby case, June 30, 2014, in Chicago, Illinois.

Scott Olson/Getty Images

In case you believed Wednesday’s big contraception/religious liberty case at the Supreme Court was about contraception, or about religious liberty, you would be wrong. It’s about Obamacare. Again. For the fourth time in four years. And in case you believed the court’s conservatives have maybe come around on Obamacare—well, no. They still hate it. But now they hate it in sound bites.

Wednesday’s arguments in Zubik v. Burwell offer pretty good evidence that—to some members of the court—the only thing worse than Obamacare is what Obamacare is doing to the petitioners here. Specifically, the idea that Obamacare has “hijacked” the nonprofit religious charity Little Sisters of the Poor (and others like it) and their insurance apparatus to force the horror that is Obamacare onto them. As Justice Samuel Alito says during arguments, the contraception mandate at issue in Zubik could also plausibly be characterized as “an unprecedented threat to religious liberty in this country.”

By way of background: The Affordable Care Act required most employers to provide their employees with free contraceptive coverage as part of their insurance plans. From the outset, the Obama administration exempted actual houses of worship (churches, synagogues, mosques, etc.) from this requirement but determined that religiously affiliated nonprofits with broader missions and religiously diverse staffs could avail themselves of a workaround. The administration asked these religious schools and hospitals to sign a form—later there was an option to mail in a letter—saying they object to covering these items. At that point the government coordinates with the insurance companies or third-party administrators to provide women who want birth control with contraceptives from separate funding streams and using separate communications. The nonprofits here today—represented by Bishop David Zubik, head of the Catholic Diocese in Pittsburgh, and by the Little Sisters of the Poor, an order of nuns who run nursing homes for impoverished seniors—challenged this accommodation under the 1993 Religious Freedom Restoration Act. They are arguing that even the signing of a form constitutes a sinful act by triggering a sin and that the government is commandeering organizations’ own health insurance infrastructures to do so.

So this is supposed to be a case about whether American women should be guaranteed contraception as part of their preventative care coverage—as stipulated by the Affordable Care Act—or whether their religious employers could object on spiritual grounds. It’s an objection to a workaround in search of a better workaround. Riveting, wonky stuff … but as Obama’s Solicitor General Donald Verrilli tries to explain that women have a compelling interest in obtaining birth control and that when that access is thwarted they face a serious burden, Justice Alito turns back quickly to the horrors of Obamacare. Alito muses, playfully: “What type of a burden does that impose? Is it because [Obamacare’s government insurance] exchanges are so unworkable—even with the help of a navigator …”

Chief Justice John Roberts characterizes the case as a simple “question of who does the paperwork.” That is, it’s either the nuns or the female employees. As Roberts mentions this, he stares stonily down at Verrilli and returns to Alito’s argument about the exchanges: “You said, ‘yes, it is a hassle to go to the exchange …’ although—I’ve heard about how easy it is …”

The court may have lost Justice Antonin Scalia last month, but the impulse to channel Glenn Beck lives on.

For those who were hopeful that Justice Anthony Kennedy might be open to the government’s claims in this case; also, no. It doesn’t look like it. Even though the accommodation being offered to the religious nonprofits had been blessed by the Hobby Lobby majority just two years ago, when the court found that for-profit companies didn’t have to provide contraception if they had religious objections, things have apparently changed. In that case, this very workaround was deemed by Alito, writing for the majority, a compromise that “achieves all of the government’s aims while providing greater respect for religious liberty.” But as in all acts of Obama-era negotiation, that compromise has itself become unbearably oppressive on opponents of the president’s policies. And by the end of the 90-minute argument, Kennedy does not look apt to cross the aisle.

Under RFRA, the government may not “substantially burden a person’s exercise of religion” unless it needs to do so “in furtherance of a compelling governmental interest” and it uses “the least restrictive means” of furthering that interest.

Seven federal appeals courts found that the workaround created no “substantial burden” on the nonprofits’ religious freedom. One court—the 8th U.S. Circuit Court of Appeals—felt it did, and the case thus made its way to the Supreme Court, with much less fanfare than Hobby Lobby

Paul Clement, representing Zubik and the religious objectors, likens the government’s takeover of the nuns’ insurance plan to the Obama administration “coming into one of the Little Sisters’ homes and setting up shop in a room,” then “building a Title X clinic on the premises.”

Clement does a fantastic job on Wednesday, although for a man who has always been the coolest cat in the chamber, he’s more excited than I have ever seen him. At one point Justice Elena Kagan accuses him of not answering her questions, and he looks a little pained, which is, for Clement, high drama.

Justice Sonia Sotomayor asks Clement whether a government law that burdens someone’s religious practice can ever be
insubstantial. Since “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,” she wonders if they can all opt out and what the consequences would be. “How will we ever have a government that functions?” 

Justice Stephen Breyer makes a pitch for everybody to try to get along in a diverse society. It’s adorable: “Sometimes,” he begins, “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. 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 …” This goes on for a while, but it ends with Breyer asking Clement, “What is the line?” 

After Noel Francisco—also representing the religious objectors—argues repeatedly that the government’s interest can’t be all that compelling if it’s giving everyone and her mother so many exemptions, Verrilli gets 45 minutes to try to explain the administration’s position on this case. He starts off trying to sound reasonable: “The accommodation that petitioners challenge in this case strikes precisely the sensible balance
between religious liberty and compelling governmental interests,” he says. And he also tries to finish by sounding reasonable: “A sensible balance is essential in a pluralistic society like ours, in which people of every faith on Earth live and work side by side, and the government has got to administer rules that are fair to everyone.” But in between he is shelled by Alito, Roberts, and Kennedy, each of whom finds a way to call him out as a hijacker and to scoff at his sensible sensibleness.

Kennedy questions whether Verrilli’s concession that the religious objectors sincerely believe they’re complicit in a “moral wrong” means Verrilli also concedes the form requirement creates a substantial burden for them. Kennedy says that he thinks it is a substantial burden, and he’s the one with a vote. Roberts notes that Clement “has used the phrase hijacking,” and that “it seems to me that that’s an accurate description of what the government wants to do.”

Verrilli explains that the government wants a woman’s coverage to be “seamless.” Alito says, skeptically, “[s]o she’ll have two insurance cards instead of one. She’ll have one from the employer, and she’ll have one from this plan.” He asks why the women in grandfathered plans are even exempted from this vital coverage, if it’s such a compelling interest. Verrilli replies that the number of grandfathered plans drops each year. Alito snaps back: “In the long run we’re all dead.”

When Verrilli says that this health care is critically important for women and queries how women can get proper health care if their primary physicians cannot even counsel them about birth control, Kennedy makes his views known: “That’s why it’s necessary to hijack the plans?” 

Breyer tries to point out that by law the plans belong to the insurer, not to the groups and people who buy them. But mainly Verrilli is being told in all kinds of ways that Congress should just fix the ACA—the one they keep trying to repeal—and this will solve all the problems in a way that won’t burden the nuns. The alternate workarounds floated—women should just apply for contraceptive coverage on the exchanges; women should just carry two insurance cards; women should look to Title X—are alternatives that Republicans are either hellbent on gutting or are “factually inaccurate,” as Sotomayor calls the Roberts suggestion that contraceptives-only policies exist under the ACA; or they are really expensive. In short, the court’s conservative men seem to think today that the least burdensome alternative here is for American women to do what they do best in the first place … go shopping!

Because of Scalia’s absence from the court, the case could well be headed for a tie, which would mean the result would revert to whatever each individual circuit court already decided. If it does come down 4–4, religious liberty law will mean one thing in Texas and something else in Arkansas, and this could be the case for the foreseeable future. Maybe that doesn’t really matter. As Justice Alito reminds us, “In the long run we’re all dead.” Still, it would be nice to have a ninth justice before then.