“What I don’t understand, Mr. Clemens,” said Supreme Court Justice Sonia Sotomayor on Wednesday, as she addressed the lawyer for a group of nonprofits who’ve objected on religious grounds to providing insurance coverage for contraception, “is, when will any government law that someone claims burdens their [religious] practice ever be insubstantial?”
That’s the big question raised by Zubik v. Burwell, the fourth challenge to the Affordable Care Act to reach the Supreme Court. At issue is a regulation requiring all employer-provided health plans to cover birth control. Some religiously affiliated nonprofits—schools and hospitals, for instance, and a group of nuns called Little Sisters of the Poor, which runs nursing homes—objected to the mandate, so the Obama administration offered them an accommodation: they could opt out of providing contraception coverage by filing a form stating their religious opposition, and the government would work with insurers to provide it.
The plaintiffs in Zubik v. Burwell argue that even filing a form makes them complicit in the process of providing birth control and, accordingly, violates their rights under a federal law called the Religious Freedom Restoration Act. Paul Clement, one of the lawyers for the plaintiffs, argued during Wednesday’s hearing that the opt-out process was akin to setting up a clinic that offered birth control in a nun’s home. It amounts to a “hijacking” of their health plans, he argued, a phrase later parroted by Chief Justice John Roberts and Justice Anthony Kennedy, who is likely to be the swing vote in the ruling.
The objection to the accommodation, specifically, is part of what differentiates Zubik from 2014’s Hobby Lobby case, which involved for-profit corporations whose owners also objected to the mandate on religious grounds. In Hobby Lobby the Court ruled that that the companies didn’t have to pay for birth control coverage. But it left open the possibility that the government could provide an accommodation similar to what it offered the nonprofits. Now that option is in question. If the religious nonprofits win their case, it means Hobby Lobby, a craft-store chain, and other corporations who object to it would likely be able to fully deny contraception coverage, too, which could impact many more thousands of women.
A main point of contention during Wednesday’s arguments was which group would be most burdened: religious groups, in filling out an opt-out form, or female employees who might face bureaucratic hurdles if they’re forced to obtain contraceptive coverage through other means. Justice Samuel Alito implied women could simply get contraception through an alternative arrangement. “Suppose that it were possible for a woman who does not get contraceptive coverage under…a plan offered by a church or under a plan offered by a religious nonprofit to obtain a contraceptive only policy free of charge on one of the exchanges,” he suggested. Kennedy wanted to know, “If [birth control is] so easy to provide, if it’s so free, why can’t they just get it through another plan?” Roberts, too, insisted that women could just get contraception-only plans on the insurance marketplace.