WASHINGTON (CN) - Without a ninth justice to break the tie, the Supreme Court appeared deadlocked Wednesday on the latest challenge to President Barack Obama's health care law.
Nearly two years since its 5-4 split on curbing Obamacare's so-called contraception mandate for closely held companies, the court looked today at a similar challenge by religious nonprofits. The lead plaintiff in the appeal, Rev. David Zubik, is a Catholic bishop in Pittsburgh.
While the Patient Protection and Affordable Care Act lets religious organizations opt out of the contraception mandate, Zubik and fellow opponents of the law claim that the framework still makes them complicit in contraception use since individual insurers or third-party administrators take up that mantle for their employees.
Zubik's is one of eight cases the Supreme Court took up from the Third, Fifth, 10th and D.C. Circuits, all of which found that the contraception mandate serves a compelling government interest, while giving religious groups an acceptable way out.
It didn't take long at today's hearing for the delineations between the eight justices on the bench to show, as the four more liberal justices grilled the attorneys for the nonprofits, while the conservative justices returned the favor to the government.
Justices Sonia Sotomayor and Elena Kagan compared the nonprofits' desire not to fill out a form to conscientious objectors during the Vietnam War, with Sotomayor wondering how the government could exempt an organization from an activity without knowing if that organization wanted to opt out.
Paul Clement, who argued for the Little Sisters of the Poor as well as three Christian colleges, said the government is demanding more than just an objection, because the opt-out form is actually an authorization to provide contraception. He later referred to the form as a "permission slip."
"There is the fact that the government demands more than an objection, the fact that it enforces it with massive penalties, and the realty that if that happens, then they are going to hijack our health plans and provide the coverage against our will," Clement said.
In closing the arguments, Clement called Sotomayor and Kagan's comparisons wishful thinking.
"Just in closing, my clients would love to be a conscientious objector, but the government insists that they be a conscientious collaborator," Clement said. "There is no such thing."
Clement claimed the intangible nature of health plans was stopping the justices from seeing how the nonprofits could think they are complicit in providing contraception under the current arrangement.
The attorney painted a hypothetical where the insurers - instead of giving a nonprofit's workers contraception separate of their employers' plan - showed up at the Little Sisters' home, paid rent for a room and set up a clinic handing out contraception.
It would be clear then why Little Sisters would see itself as helping to violate a core religious tenant, Clement said.
But Justice Stephen Breyer countered that religious objection is not a catch-all for people to avoid complying with laws they oppose.