3 Things To Watch In the Supreme Court’s Hobby Lobby Sequel

The latest challenge to Obamacare’s contraception mandate could be especially difficult for an eight-member Court to resolve.

The Supreme Court will hear a sequel to the 2014 Hobby Lobby case, filed by a group of religious nonprofits.
AP Photo/Pablo Martinez Monsivais
Sam Baker
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Sam Baker
March 21, 2016, 8 p.m.

Obama­care’s con­tra­cep­tion man­date re­turns to the Su­preme Court on Wed­nes­day in a case that will test how well the Court can func­tion with only eight justices.

Wed­nes­day’s cases—the Court has con­sol­id­ated sev­en in­di­vidu­al law­suits in­to a single ap­peal—are a sort of se­quel to the Court’s 2014 Hobby Lobby rul­ing, which ex­emp­ted cer­tain for-profit busi­nesses from Obama­care’s con­tra­cep­tion man­date. Now, a group of re­li­gious non­profits is ask­ing the Court to ex­empt them from the re­quire­ment al­to­geth­er, ar­guing that the middle ground pro­posed by the Obama ad­min­is­tra­tion is still a vi­ol­a­tion of their re­li­gious liberty.

The ba­sic ar­gu­ments are sim­il­ar to the Hobby Lobby case: The plaintiffs, a hand­ful of re­li­gious-af­fil­i­ated em­ploy­ers, say the con­tra­cep­tion man­date vi­ol­ates the Re­li­gious Free­dom Res­tor­a­tion Act—a 1993 fed­er­al law that raises the leg­al stand­ard that the gov­ern­ment must meet in or­der to jus­ti­fy laws and reg­u­la­tions that en­croach on re­li­gious ex­er­cise.

But the con­tra­cep­tion man­date ap­plies to these em­ploy­ers dif­fer­ently than it did to Hobby Lobby, and that has touched off a de­bate with the Justice De­part­ment over the scope of em­ploy­ers’ re­spons­ib­il­it­ies, the pur­pose of provid­ing con­tra­cep­tion, and even the defin­i­tion of an “ex­emp­tion.”

Here are three key is­sues to watch in Wed­nes­day’s or­al ar­gu­ments:

Whose side is Hobby Lobby on?

Both sides in the con­sol­id­ated case, known now as Zu­bik v. Bur­well, claim that the Hobby Lobby pre­ced­ent cuts clearly in their fa­vor. Who­ever gets the bet­ter of that ar­gu­ment will have a much stronger chance of ul­ti­mately win­ning this case.

Briefly, here’s how Obama­care’s con­tra­cep­tion man­date works: Most em­ploy­ers that of­fer health in­sur­ance must in­clude in their cov­er­age a list of pre­vent­ive ser­vices, in­clud­ing con­tra­cep­tion, without char­ging a co-pay or tak­ing the costs out of em­ploy­ees’ de­duct­ibles. If they don’t, they face steep pen­al­ties. Churches and houses of wor­ship are ex­empt.

For “re­li­gious-af­fil­i­ated” em­ploy­ers—such as Cath­ol­ic hos­pit­als and uni­versit­ies—there’s a middle ground: They don’t have to provide con­tra­cep­tion cov­er­age dir­ectly if do­ing so would vi­ol­ate their re­li­gious be­liefs; they can in­stead no­ti­fy the Health and Hu­man Ser­vices De­part­ment of their ob­jec­tion, and HHS will ar­range for the em­ploy­er’s in­sur­ance com­pany to provide that cov­er­age, without any help from the em­ploy­er and without us­ing the em­ploy­er’s money.

The plaintiffs in Zu­bik say that “ac­com­mod­a­tion” still forces them to vi­ol­ate their re­li­gious be­liefs, be­cause they must still per­form an ac­tion that ends up with their em­ploy­ees re­ceiv­ing con­tra­cep­tion cov­er­age.

“The gov­ern­ment wants pe­ti­tion­ers to do pre­cisely what their sin­cere re­li­gious be­liefs for­bid—and it is threat­en­ing them with dra­coni­an pen­al­ties un­less they do so,” the plaintiffs said in a brief to the high court. “It is the same man­date en­forced by the same pen­al­ties as in Hobby Lobby, and it is a clas­sic sub­stan­tial bur­den on re­li­gious ex­er­cise.”

But the Justice De­part­ment also lays claim to the Hobby Lobby pre­ced­ent. When the high court ruled that HHS could have found a bet­ter way to en­sure con­tra­cep­tion cov­er­age for Hobby Lobby’s em­ploy­ees, it spe­cific­ally cited as one pos­sible al­tern­at­ive the “ac­com­mod­a­tion” avail­able to non­profits like the plaintiffs in this case.

“In these con­sol­id­ated cases, pe­ti­tion­ers con­tend that the ac­com­mod­a­tion on which Hobby Lobby re­lied is it­self a vi­ol­a­tion of (RFRA),” the Justice De­part­ment ar­gues.

Test­ing the eight-mem­ber Court

Hobby Lobby was a 5-4 de­cision against the con­tra­cep­tion man­date. If every­one stays on the same side of the ba­sic ques­tion this time, without Scalia, the Court would dead­lock 4-4. Nor­mally, when the Su­preme Court is tied, the lower court’s de­cision re­mains in place but no pre­ced­ent is set for any oth­er lower courts to fol­low.

On the con­tra­cep­tion man­date, though, it’s not so easy. In the sev­en con­sol­id­ated cases be­fore the Su­preme Court on Wed­nes­day, fed­er­al ap­peals courts sided with HHS, up­hold­ing the con­tra­cep­tion man­date. But an­oth­er court—the 8th Cir­cuit—ruled against the man­date in a sim­il­ar case that isn’t be­fore the high court.

A dead­lock, then, would leave in place con­tra­dict­ory rul­ings. HHS would have to carve out an ex­emp­tion for non­profits in some parts of the coun­try, but could en­force the man­date nor­mally in oth­ers. And in­surers in some parts of the coun­try would have to do their part to com­ply with HHS’s “ac­com­mod­a­tion,” while cut­ting out con­tra­cep­tion cov­er­age al­to­geth­er else­where.

One of the biggest reas­ons the Su­preme Court agrees to hear par­tic­u­lar cases is to re­solve ex­actly that type of split—but in this case, its in­ter­ven­tion might not settle any­thing. In light of those messy op­tions, many leg­al ex­perts be­lieve that if the Court is tied, it would de­cide to hold the case over for a new ar­gu­ment if and when Scalia’s re­place­ment is con­firmed, rather than is­sue a 4-4 de­cision now.

A play for “Dig­nity Kennedy”

The clearest way to avoid a 4-4 de­cision or a years-long delay would be for one side to win Zu­bik out­right—and the most likely route to a 5-3 de­cision would be for the Court’s lib­er­al bloc to peel off the vote of Justice An­thony Kennedy.

Kennedy sided with the con­ser­vat­ives in Hobby Lobby, but the Justice De­part­ment’s briefs in Zu­bik make an ag­gress­ive play for his vote, aim­ing to frame the case around the broad themes that have an­im­ated Kennedy in the past—namely, dig­nity.

The Justice De­part­ment said al­low­ing non­profit em­ploy­ers to opt out of con­tra­cep­tion cov­er­age al­to­geth­er would threaten the “ba­sic hu­man dig­nity” of fe­male em­ploy­ees, echo­ing lan­guage from Kennedy’s de­cisions on same-sex mar­riage.

“Be­cause pe­ti­tion­ers ob­ject [to cov­er­ing con­tra­cep­tion], their em­ploy­ees and stu­dents would suf­fer the loss of stat­utory rights and be­ne­fits that may be of cent­ral im­port­ance to their health, their concept of mor­al re­spons­ib­il­ity, and even their sense of their place in the world,” the Justice De­part­ment wrote.” And they would be de­prived of those rights be­cause their em­ploy­er holds re­li­gious con­vic­tions that they may not share.”

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