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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