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 An evenly split ruling, with the court's four liberals backing the
Obama administration against the four conservative justices, would
leave in place lower-court rulings rejecting challenges brought by
the Christian organizations that oppose providing contraception
coverage for religious reasons.
Justice Anthony Kennedy, who often casts the deciding vote in close
cases, appeared more aligned with the court's three other
conservatives in favoring the challengers, which primarily were
Roman Catholic including the archdiocese of Washington.
The Christian employers call contraception immoral and argue that
the government should not compel religious believers to choose
between following their faith and following the law. They argue they
should get the complete exemption from the mandate already given to
places of worship such as churches, mosques and temples.
Kennedy said if religious employers were forced to comply with the
contraception mandate they would be "in effect, subsidizing the
conduct that they deemed immoral."
Only eight justices heard the latest high-profile conservative
challenge to the law, considered Obama's signature legislative
achievement, following conservative Justice Antonin Scalia's Feb. 13
death.
The court heard 90 minutes of arguments in the case, Zubik v.
Burwell, on the sixth anniversary of Obama signing into law the
Affordable Care Act, known as Obamacare. The law has expanded
medical insurance coverage to millions of previously uninsured
Americans.
Conservatives have mounted numerous legal challenges to the law. The
Supreme Court in 2012 and 2015 issued high-profile rulings leaving
Obamacare intact.
The court heard arguments on seven consolidated cases focusing on
whether nonprofit entities that oppose the requirement can object
under a 1993 U.S. law called the Religious Freedom Restoration Act
to a compromise measure offered by the government.
A ruling is due by the end of June.
A 4-4 split would set no national legal precedent against such
claims, and would allow them in some parts of the country depending
on lower-court rulings. The justices also potentially could order
the case reargued.
OPTING OUT
The Christian groups object to a 2013 compromise offered by the
Obama administration that allowed groups opposed to providing
insurance covering birth control to comply with the law without
actually paying for the required coverage.
Groups can certify they are opting out of the mandate by signing a
form and submitting it to the government. The government then asks
insurers to pick up the tab for contraception.
The challengers contend the accommodation violates their religious
rights by forcing them to authorize coverage for employees even if
they are not paying for it.
One question before the hearing was whether Kennedy would be more
sympathetic to the government than he was in a 2014 case concerning
the same contraception requirement.
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Kennedy was in the majority when the court ruled 5-4 that
family-owned companies run on religious principles, including craft
retailer Hobby Lobby Stores Inc, could object to the provision for
religious reasons.
Kennedy wrote a concurring opinion then saying an accommodation like
the one now at issue could be acceptable. Nothing he said during
Wednesday's arguments indicated he thinks the accommodation now
before the court passes legal muster.
The federal government asserts it has a compelling interest in
protecting the health of female workers, and that contraceptive
coverage is part of that. The challengers say the government has
imposed a substantial burden on their religious rights and that the
waiver is not the least restrictive means, as required under the
religious freedom law, toward its goal.
Kennedy questioned whether it would be difficult for the government
to arrange alternative access to contraception coverage that would
not force religious groups to be complicit.
"If it's so easy to provide, if it's so free, why can't they just
get it through another (insurance) plan?" Kennedy asked.
Liberal justices raised concerns about giving nonprofit religious
organizations the same exemptions churches get. Justice Elena Kagan
said Congress might stop giving churches exemptions when it passes
laws, posing a "mortal danger" to them.
Liberal Sonia Sotomayor referred to the danger of widespread
exemptions from government requirements, asking, "How will we ever
have a government that functions?"
Liberal Stephen Breyer said religious groups often contend with
government decisions they oppose. He cited Quakers, who opposed the
Vietnam War but were still required to pay taxes that funded
military spending.
Conservative Chief Justice John Roberts said the challengers'
contention that the government was seeking to "hijack" their
insurance plans in order to provide contraception coverage appeared
to be an "accurate description of what the government wants to do."
Among other challengers in the case were: the Little Sisters of the
Poor order of Roman Catholic nuns that runs care homes for the
elderly; and Bishop David Zubik and the Roman Catholic Diocese of
Pittsburgh.
(Reporting by Lawrence Hurley. Additional reporting by Joan Biskupic;
Editing by Will Dunham)
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