The Supreme Court may be facing its first major 4-4 split since Justice Scalia's death in an crucial case on contraception and religious freedom.
This past Wednesday, March 23, the Court heard oral arguments in Zubik v. Burwell, which pits faith-based institutions' objection to providing contraception coverage against a part of the Affordable Care Act (ACA, or Obamacare).
A 4-4 split ruling would leave the previous lower court's ruling in place, protecting the ACA.
Why is it important?
The case is key to answering: what exemptions should religious institutions receive, and what burdens can that place on others?
Importantly, the section of the ACA in question is not its general contraception coverage requirement. That mandate already completely exempts churches and other houses or worship, and offers a conditional exemption to religious nonprofits like the plaintiffs. The latter also applies to "closely-held" for-profit corporations with similar objections, after the 2014 case Burwell v. Hobby Lobby. These two groups may fill out a two-page form citing their objection, and a third party will cover employees contraception at no cost to the employer.
The plaintiffs, including a group of Catholic nuns called the Little Sisters of the Poor, argue that filling out this form violates their rights under the Religious Freedom Restoration Act (RFRA) because it requires them to facilitate access to birth control.
Should religious nonprofits be completely exempt from providing contraception coverage?
The existing exemption for religious nonprofits is an already indulgent allowance. Informing the government of a religious objection is not a significant burden on faith groups and does not violate their rights. In fact, it does not even meaningfully "facilitate" providing birth control, because coverage is already guaranteed under law.
If the Court holds that this trivial burden on an employer's religious belief—merely filing a form claiming those beliefs exist—outweighs the interests of its employees in having access to contraception coverage, it will have two outcomes: 1) stated religious belief will trump virtually any legal protection, and 2) lack of contraception will likely drive up the number of unwanted pregnancies and abortions, particularly in low income communities.
Further, many religious leaders argue these plaintiffs are harming religious freedom itself, because they pretend the government cannot differentiate between churches and religious nonprofits, which jeopardizes an important legal tradition of specific religious exemptions. Even within the religious community, the plaintiff's arguments fall flat.
The conditional exemption is not really an exemption at all. It does not matter that a third party provides the coverage; the ACA requires religious institutions to authorize their health plan to offer services that, their words, "violate our beliefs and waive our protections under federal civil rights laws."
Think of the analogy, which the nun's in the Little Sisters of the Poor have used in their arguments, to schools banning sodas. If the soda companies were to pay for the machines, like a third party for birth control coverage, it wouldn't matter. If children could get soda elsewhere, like employees can with contraceptives, it wouldn't make a difference to the school's decision. What matters is the school's objection to providing children with something they think is bad for them.
There are many other ways to gain birth control and many fully exempt groups that do not have protections under the Religious Freedom Restoration Act. For example, military families and certain cities like New York have exempted plans, amounting to about a third of all Americans on plans not covered by this restrictive mandate.
- The Supreme Court transcript of the oral argument
- The New York Times op-ed by the Little Sisters of the Poor
- SCOTUSblog's case pages on Hobby Lobby and Zubik
- An update on the nomination of Merrick Garland to the open Supreme Court seat