SUPREME COURT DIVIDED OVER ‘LITTLE SISTERS’ CASE
Deadlock likely in clash pitting religious liberty, birth control
An epic legal clash between religious liberty and reproductive rights left the Supreme Court deeply divided Wednesday, raising the likelihood that the justices will deadlock over a challenge by religious nonprofits to the federal government’s “contraceptive mandate.”
In a contentious series of cases that pits the Catholic Church and other religious believers against the Obama administration in the midst of a presidential election, the justices split along familiar lines, with liberals skeptical of the religious groups’ claims and conservatives empathetic.
Unlike in 2014, when the court ruled 5-4 in favor of the Hobby Lobby craft-store chain and other objectors, only eight justices heard the non-profits’ challenge in the wake of Justice Antonin Scalia’s death last month.
That makes it much tougher for the non-profits to win; a 4-4 tie would uphold lower court verdicts in different parts of the country, all but one of which upheld the government mandate.
The justices also could decide to hear the case again when they are back to full strength. Yet with President Obama and Senate Republicans at loggerheads over the nomination of federal appeals court Judge Merrick Garland that could take another year or more.
On one side Wednesday, the court’s four liberal justices argued that the government has accommodated groups such as the Little Sisters of the Poor by allowing them to cede birth control coverage to their insurers or third-party administrators. Exempting the non-profits completely, they said, would require employees to find and pay for separate insurance policies just for contraceptives.
“It can’t be ‘all my way,’ ” Justice Ruth Bader Ginsburg said. “There has to be an accommodation, and that’s what the government tried to do.”
On the other side, the court’s conservatives said the government should not be able to “hijack” the insurance plans of religious charities, schools, universities and hospitals against their moral beliefs.
“It’s a question whether you want the employee to sign a paper or you want the Little Sisters to sign a paper,” Chief Justice John Roberts said. “In the one case, it’s an administrative burden. ... In the other case, it’s a violation of a basic principle of faith.”
The cases are the latest in a series of disputes pitting the rights of religious groups and businesses against the government’s efforts to impose national standards.
This was the fourth time before the court for Obama’s prized Affordable Care Act, and it came on the sixth anniversary of the law going into effect. While it suffered a setback in a 2014 case over the “contraceptive mandate,” it has survived two major challenges to its broader requirements and subsidies.
Wednesday’s oral arguments, which stretched for 90 minutes rather than the usual hour, focused on appeals from religious non-profits to the government’s requirement that insurance plans include all common types of contraceptives at no cost to workers. The government lets them leave that responsibility to their insurance plans, but the groups say that still implicates them in an objectionable process.
Their pleas for relief won vigorous backing from some justices, including Roberts and Samuel Alito, who dominated the questioning in the voluble Scalia’s noticeable absence. Alito noted the organizations have argued that “this presents an unprecedented threat to religious liberty in this country.”
Justice Anthony Kennedy, who is likely the deciding vote in the case, appeared to be against the government. “It seems to me that that’s a substantial burden” on the religious non-profits, he said.
Yet Kennedy didn’t buy the argument floated by Noel Francisco, one of two lawyers who argued the religious groups’ cases, that they deserved the same exemption given to churches and other purely religious institutions.
“It’s going to be very difficult for this court to write an opinion which says that once you have a church organization, you have to treat a religious university the same,” he said.
And Justice Elena Kagan disputed Francisco’s comparison to the mandate’s other exemptions, such as employer insurance plans without birth control coverage that are permitted during a transition period, or small businesses with fewer than 50 employees who do not have to provide health coverage.
“There’s not a law in town that doesn’t have exceptions like that,” Kagan said.
Justice Stephen Breyer, who often tries to strike a compromise with his more conservative colleagues, said some burdens are the price of being “a member of society.” He drew comparisons to Quakers paying taxes that finance wars or Christian Scientists receiving emergency medical treatment.
Most lower courts have backed the government, ruling that the accommodation provides a sufficient buffer. One appellate court went the other way last year, creating a split that only the Supreme Court can resolve.
Only eight justices heard the nonprofits’ challenge in the wake of Justice Antonin Scalia’s death last month.