ObamaCare returns to Supreme Court

Greg Nash

ObamaCare will return to the Supreme Court on Wednesday as the justices hear another challenge to the healthcare reform law’s contraception mandate.

The challengers in the case, Zubik v. Burwell, argue the Obama administration is unjustifiably forcing religious groups like the Little Sisters of the Poor to cover birth control, despite an arrangement in which insurers provide contraception directly.

{mosads}“The burden is not on your faith to obey government mandates,” Speaker Paul Ryan (R-Wis.) said Tuesday in a floor speech defending the Little Sisters of the Poor. “The burden is on the government to respect your faith.”

The administration counters that the challengers are threatening contraceptive access for women and say the court risks setting a dangerous precedent if it finds in their

At issue is the requirement under the Affordable Care Act that health insurance plans cover contraception at no cost to the patient. The Obama administration has devised an “accommodation” to that requirement for religious nonprofits like colleges and hospitals.

Under the accommodation, nonprofits that object to covering contraceptives can sign a two-page form notifying their insurer. The insurer will then separately pay for the contraceptives for employees, which the administration says strikes a good balance: The employer does not have to provide the coverage, but the employees can still get contraceptives.

But a group of religious nonprofits disagree. They say that they are still complicit in their employees getting contraceptive coverage and call that a violation of a 1993 law known as Religious Freedom Restoration Act. That law says the government cannot “substantially burden” someone’s exercise of religion unless it is the “least restrictive means” of furthering a “compelling government interest.”

Contraception access for many is on the line in the case; the exact number of women affected is not known, though tens of thousands are thought to be working for religious nonprofits that have taken the accommodation.

Supporters of the administration warn those women could be forced to pay hundreds of dollars out of pocket for contraceptives if the court sides with the challengers.

The government also warns that a ruling against the accommodation could open the door to a slew of new legal challenges based on religious beliefs. If making a separate arrangement with a third party, in this case the insurer, is an unacceptable burden on religion, the government says, then all kinds of laws could be challenged.

Having to notify the government of a conscientious objection to the military draft, for example, could become impermissible because it would trigger the government finding someone else to fill the spot, the administration said.

The Obama administration warned in its brief to the court that a ruling for the challengers would “profoundly impair the government’s ability to function — and, in particular, to respond to religious objections in a pluralistic society made up of citizens with diverse and sometimes incompatible religious beliefs and values.”

As per usual, all eyes will be on the court’s swing justice, Anthony Kennedy, given that the four liberal justices are all but certain to rule for the government, and the three conservatives are expected to rule for the challengers. 

Justice Antonin Scalia’s death has therefore hurt the challengers’ chances, given that they are likely facing either a 5-3 loss or a 4-4 tie. 

In the event of a tie, the lower court rulings would stand. Eight circuit courts have ruled for the government, while one has ruled for the challengers. A tie in this instance would lead to the unusual situation where the accommodation would be upheld in most of the country, but in the Eighth Circuit (North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas), employers would be exempt from having to comply. 

Backers of the government suspect they might have Kennedy on their side. 

They point to a similar case in 2014, Burwell v. Hobby Lobby, that challenged the mandate for for-profit companies to provide contraception coverage at no cost. In that case, Kennedy wrote a concurring opinion that said the accommodation for nonprofits and hospitals could be a solution for the private sector. Therefore, backers of the government say, Kennedy has already endorsed the accommodation. 

“We are very confident that Justice Kennedy will once again find that the opt out process works,” said Gretchen Borchelt, a vice president at the National Women’s Law Center. 

The plaintiffs in Tuesday’s case say there is a better alternative to the accommodation: allowing the employees seeking contraception coverage to obtain insurance through the ObamaCare exchanges.

“In Hobby Lobby, you didn’t have the exchanges up and running,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor.

The administration argues the exchanges are not a good alternative because that option would be forcing employees to give up the health benefits from their job and pay the cost of a policy. 

Zubik v. Burwell is the fourth Supreme Court case involving ObamaCare. Two of those cases involved challenges that in some way involved the exchanges. Rienzi argues that, because the administration won those cases, it should lean on the exchanges it fought so hard to create.

“They won,” he said. “They have to take ‘yes’ for an answer and use the system they created.”

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