Supreme Court Justice Anthony Kennedy on Wednesday seemed to side with conservatives on important points in a case challenging the religious “accommodation” to ObamaCare's contraceptive mandate.
Kennedy, who is often the swing vote in divisive cases, seemed to accept the view of the challengers that they face a “substantial burden” in opting out of the mandate to provide contraception coverage in their health plans.
"The analysis has to be whether or not there are less restrictive alternatives," Kennedy said.
Still, Kennedy posed questions to both sides in the case, and oral arguments do not always indicate where the justices stand.
Religious nonprofits such as the Little Sisters of the Poor are challenging the accommodation to a requirement that all insurance plans cover birth control, arguing they are still complicit in providing contraceptive coverage in violation of the Religious Freedom Restoration Act (RFRA).
Some of the conservative justices raised the possibility of a separate plan to cover only contraception that could be sold on the ObamaCare exchanges, giving employees at religious nonprofits the ability to get contraceptive coverage elsewhere.
"Why can't they get it through another plan?" Kennedy said.
Solicitor General Donald Verrilli, arguing for the administration, countered that forcing women to find another plan for contraceptive coverage would impose "obstacles" such as having to possibly change doctors, and it might be outside the administration's legal authority to provide contraceptive-only coverage on the exchanges.
However, Kennedy also warned that the challengers' argument could become too broad, if, for example, Catholic universities could also get out of the mandate. He questioned where to draw the line.
"It's going to be very difficult for this court to write an opinion which says that once you have a church organization, you have to treat a religious university the same," Kennedy said.
The conservative justices argued that the government is in effect "hijacking" the nonprofits' insurance plans in order to provide contraceptive coverage, meaning the nonprofits are still complicit in providing contraceptive coverage.
But the four liberal justices warned against the precedent of opening up the floodgates to new religious objections to laws. "How will we ever have a government that functions?" asked Justice Sonia Sotomayor.
They also indicated the accommodation struck the right balance between religious liberty and allowing employees to have important access to contraception.
"There has to be an accommodation, and that's what the government tried to do," Justice Ruth Bader Ginsburg said.
A 4-4 split would let stand lower court rulings, eight of which have favored the Obama administration. But in the states governed by the Eighth Circuit, the accommodation would be struck down.
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 such as 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 they are still complicit in their employees getting contraceptive coverage and call that a violation of the 1993 RFRA. 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.
- Updated at 1:48 p.m.