WASHINGTON — The Supreme Court on Wednesday appeared deeply divided, and perhaps unable to reach a national resolution, on whether the government’s “accommodation” for religious nonprofits that object to providing contraception coverage under Obamacare violates a federal law aimed at protecting religious liberties.
Justice Anthony Kennedy was the central figure in the arguments on Wednesday — both in terms of his sought-after vote, but also in terms of his questions, which were highly skeptical to lawyers on both sides of the case.
Kennedy’s vote, as often is the situation, likely will prove key to the outcome of the cases challenging the accommodation as a violation of several religiously affiliated nonprofit groups’ religious liberties under the Religious Freedom Restoration Act. The changed composition of the court, however, means that — even if he sided with the conservatives and the nonprofit groups — there still would not be enough justices on the court able to establish a majority ruling to that end.
Such a possibility could mean that the case — addressing an aspect of Obamacare, on its fourth trip to the high court on Wednesday — could be scheduled for reargument next term, when a successor to Justice Antonin Scalia possibly could have been confirmed.
At issue is the form religiously affiliated nonprofits must fill out if they object to providing insurance coverage for contraception under Obamacare — the “accommodation” to the contraception mandate — and the protections provided by RFRA to the nonprofit groups’ religious interests. (Churches do not need to fill out the form; they are automatically exempted.)
If the nonprofits fill out the form, the government then sends a separate form to the insurance plan administrator providing authorization for contraception coverage that is paid for by the government. The groups argue that the requirement of submitting the form makes them complicit in providing the coverage, which they object to on religious grounds.
Under RFRA, the first question is whether the government action places a substantial burden on the objector’s religious exercise. If it does, the government action is only allowed if it advances a compelling state interest and is the least restrictive way of advancing that interest.
The court previously held in the Burwell v. Hobby Lobby case that the contraception mandate itself violated RFRA when applied to closely-held, for-profit businesses with objections to the mandate. In that case, though, the court pointed to the accommodation given to nonprofit groups as a possible solution to be extended to for-profit companies — characterizing the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives.”
At one point, Kennedy questioned Noel Francisco, one of the lawyers for the religiously affiliated nonprofit groups, skeptically characterizing part of their argument as, "Once you give [an exemption] to the church, you have to give it to every [religiously affiliated nonprofit]."
He then said, “I just find that [opinion] very difficult to write.”
Paul Clement, the other lawyer for the nonprofits, had characterized the government’s way of handling the groups’ objections as “hijacking” the health plans offered by the groups.
Later, when the government’s lawyer, Donald Verrilli, Jr., was arguing that other means of providing coverage for women than that used by the government here would be a “significant obstacle,” Kennedy picked up on Clement’s language, asking, “That’s why it’s necessary to hijack the [groups’] plans?”
The government, for its part, counters that what Clement calls “hijacking” actually is the entire purpose of providing “seamless” preventative health care coverage — including contraception coverage — under the Affordable Care Act.
If Kennedy sides with the four more liberal justices in finding that the accommodation is permitted under RFRA, the 5-3 decision would resolve the matter. (If Kennedy doesn’t join the liberals outright, it also appeared throughout the arguments that Justice Stephen Breyer might have been attempting to find some narrower, line-drawing solution that could garner Kennedy’s vote.)
If Kennedy sides with the three more conservative justices in finding that the accommodation violates RFRA, however, the court would only be split 4-4 — a decision that would leave conflicting lower court rulings in place. (Chief Justice John Roberts appeared to think this was a very real possibility, given his questioning in the case, which was far more aggressive than usual.)
If that happens, the fact that such a resolution would not actually resolve the issue could lead the court instead to seek reargument next term, which begins in October. Even that scenario wouldn’t necessarily resolve the issue, though, as it’s entirely possible that the court still will be an eight-member court come October.