Thread: Supreme Court deeply divided over religious freedom, reproductive rights

Supreme Court deeply divided over religious freedom, reproductive rights

Richard Wolf, USA TODAY
12:37 p.m. EDT March 23, 2016


(Photo: Jarrad Henderson, USA TODAY)


WASHINGTON — An epic legal clash between religious liberty and reproductive rights left the Supreme Court deeply divided Wednesday, raising the likelihood that the eight justices will deadlock over a challenge by religious non-profits to the federal government's so-called "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.

On one side, 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 pawn off coverage of birth control methods to their insurers or third-party administrators. Anything more, 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 — minus Justice Antonin Scalia, who died last month — 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 of who does the paperwork," Chief Justice John Roberts said. "In 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 organizations and businesses against the government's efforts to impose national standards. Those disputes have played out in recent years over health care and same-sex marriage, reaching the high court multiple times.

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This was the fourth time before the court for President Obama's prized Affordable Care Act, and it came a day after the law celebrated its sixth anniversary. While it suffered a setback in a 2014 case over the so-called "contraceptive mandate" as applied to certain for-profit businesses, it survived two major challenges to its broader insurance 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. 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 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 to decide the case either way, appeared to be against the government as well. "It seems to me that there's a substantial burden" on the religious non-profits, he said.

But 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."

Most lower courts have backed the government, ruling that the accommodation — extended in 2014 to for-profit businesses whose owners have religious objections, such as the Hobby Lobby chain of craft stores — provides a sufficient buffer. One appellate court went the other way last year, creating a split that only the Supreme Court can resolve.

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Unlike in 2014, when the court ruled 5-4 in favor of Hobby Lobby and other objectors, only eight justices heard the non-profits' challenge following Scalia's unexpected Scalia's death last month.

That makes it much tougher for the non-profits to win; a 4-4 tie will uphold lower court verdicts, leaving religious non-profits and their employees subject to different rules depending on where they are located.

The Obama administration sought an accommodation for the non-profits several years ago after they objected to the requirement that contraception be included in all women's preventive health insurance packages. The solution: put the objections in writing, and the burden will be switched from employers to insurers.

Women lobby in support of the Affordable Care Act's birth control mandate outside the Supreme Court ahead of oral arguments in Zubik v. Burwell on March 23, 2016. (Photo: Jim Lo Scalzo, European Pressphoto Agency)


That was enough for most federal appeals courts that have heard the challenges. The U.S. Court of Appeals for the District of Columbia Circuit, in a case brought by the Archbishop of Washington, said those who opt out "are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms."

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But the groups say even writing a letter or filling out a form makes them complicit. And the Supreme Court blocked many of those rulings from taking effect while appeals play out. Justice Sonia Sotomayor blocked the ruling against the Little Sisters of the Poor on New Year's Eve more than two years ago. Otherwise, non-profits could have been liable for fines of up to $100 per day for each uncovered worker.

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More than 99% of sexually active women ages 15 to 44 have used at least one type of birth control, according to the Guttmacher Institute, which conducts research on sexual and reproductive health and rights. Abortion rights groups say any additional obstacles placed in their way raises the risk of unplanned and risky pregnancies.

Religious liberty groups say the Obama administration can guarantee women coverage for contraceptives without forcing employers with religious objections to provide it.

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