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Contraception-Mandate Reboot Divides Court

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.


"Sometimes when a religious person who isn't 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," Breyer said.

To Clement, however, there is a line that reasonable people can try to find between religious people accepting some infringement on their faith and what the government is doing with the contraceptive mandate.

Specifically mentioning the Little Sisters, Clement told the court he would like his clients to receive the same exemption given to churches, which do not have to cover contraception for their employees or go through the work-around created for the nonprofits.

But as Kagan pointed out, this could incentivize Congress to stop writing religious exemptions into laws, opening the floodgates of groups asking to skip out on complying with new laws.

"And if you're saying that every time Congress gives an exemption to churches and synagogues and mosques, that they have to open that up to all religious people, then the effect of that is that Congress just decides not to give an exemption at all," Kagan said.

Noel Francisco, who argued for the Rev. Zubik and the Catholic dioceses, said the government has show it does not have a substantial interest in providing contraception by allowing a wide swath of exemptions, including allowing employers to keep old health plans that did not include coverage of contraception.

When Kagan pressed him on what his clients would prefer, Francisco said they would accept an arrangement where employees could purchase a separate health plan for contraception, further separating them and the group providing the contraception.

"I think the more distance you put between the petitioners on the one hand and the provision of the objectionable coverage to their employees on the other, the less problematic it is from their particular perspective," Francisco said.

Solicitor General Donald Verrilli Jr. warned that Francisco's idea contravenes the intent of the contraception mandate, which is to make women more likely to use contraception by making it easier to get.

He called Francisco's proposal "jerry-rigged" and warned that a woman's regular doctor might not be able to help her get access to contraception, because she would have to maintain two plans.

That "defeats the very purpose" of the contraception mandate, Verrilli said.

But Justice Samuel Alito challenged Verrilli's claim that a woman's primary doctor wouldn't also accept her contraception plan, and suggested the government could help ensure women get access to these supplemental plans.

"Could the executive say, as a matter of our enforcement discretion, we are not going to take any action against insurers who offer contraception-only policies, and in fact, we are going to subsidize those insurers at 115 percent, just as we do in the situation of self-insured plans?" Alito asked.

Chief Justice John Roberts agreed with Clement's contention the government would be "hijacking" the employers' health plans and said the arrangement would force the employers to be complicit in "sinful" behavior.

Verrilli later told Roberts forcing people to seek a second health care policy just for contraception would itself be a substantial burden.

"What type of burden does that impose?" Roberts shot back. "Is it because those exchanges are so unworkable, even with the help of a navigator, that a woman who wants to get free contraceptive coverage simply has to sign up for that on one of the exchanges?"

If the arguments inside were lively by Supreme Court standards, the demonstrations outside were raucous.

By 8:30 Wednesday morning, a large group of roughly 20 students from Oklahoma Wesleyan University, one of the schools involved in the case, stood outside the courthouse wearing bright orange shirts and forming a wide semicircle around a podium that read "let them serve."

Two sisters from the Dominican Sisters of Hawthorne order in Philadelphia stood near the students, waiting for more of their religious sisters to arrive.

"We're here to support the Little Sisters of the Poor in their cause, which is really out cause also, to be able to live our faith, to give witness to values of morality and being fully human to the height that we can be," Sister Mary DuPaul said.

As the students gathered, speakers near the podium played a slow, hymnlike arrangement of "America the Beautiful," featuring a male voice and piano.

Outside the semicircle of students, a sparse group of women's health advocates began to gather. When the students began playing "America the Beautiful," their opponents countered by blaring Ariana Grande's "Break Free."

By the time arguments ended, however, the demonstrations had ramped up significantly, with groups for both sides crowding the plaza at the bottom of the Supreme Court steps holding brightly colored signs and wearing slogan-clad T-shirts. Nuns in full habits stood out among their fellow demonstrators.

The students sang songs while the women's health advocates blasted pop music and cheered for lawyers coming down the steps. Those on the side of the religious groups shouted "let them serve," while the other side chanted "pro-birth control, pro-family."

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