‘Conscientious objectors’: Supreme Court divided on nuns’ challenge to Affordable Care Act

Nuns with Little Sisters of the Poor walk after Zubik v. Burwell, an appeal brought by Christian groups demanding full exemption from the requirement to provide insurance covering contraception under the Affordable Care Act was heard by the U.S. Supreme Court in Washington March 23, 2016. © Reuters
The US Supreme Court appeared to be evenly divided after hearing oral arguments Wednesday as to whether religiously affiliated organizations should be exempt from providing contraceptive coverage to their employees, as mandated by the Affordable Care Act.

During arguments lasting 90 minutes that saw frequent interruptions by the justices, “the court seemed headed for a 4-4 tie that would leave the issue unresolved nationally,” reported the Associated Press.

The appeals case in question, Zubik v. Burwell, involved seven Christian groups demanding full exemption from the requirement to provide insurance coverage for contraception under the Affordable Care Act.

The latest challenge to the health care law was led by The Little Sisters of the Poor charity, which argued against the option to opt-out of the so-called contraception mandate, which requires groups to notify the government of their objections.

The Little Sisters and others argued that taking any action to comply with that requirement, even those as simple as completing form or writing a letter, went against their religious beliefs.

“In reality, it’s an opt-in, a permission slip,” Sister Constance Veit from Little Sisters of the Poor told the Associated Press.

Sister Constance said that the only alternative is to pay a big fine, which would amount to much as $70 million a year in the Little Sisters’ case, according to USA Today.

Washington lawyer Paul Clement, who represented the charity, said the government would not allow the group to be “conscientious objectors.”

“The government insists they be conscientious collaborators,” Clement said in his closing argument, according to AP.

The court’s four liberals seemed supportive of the Obama Administration’s position. Justice Sonia Sotomayor, one of the liberal justices, said that the administration’s accommodation insulated the religious groups, while wondering “how will we ever have a government that functions” if everyone felt laws violated their beliefs.

Justice Anthony M. Kennedy, on the conservative side, expressed doubts.

He told the Justice Department’s lawyer that it sounded as if the challengers were right in their allegation that the government was “hijacking” their insurance plans to provide contraceptive coverage, rather than finding a way to provide the coverage without involving the groups at all.

Chief Justice John G. Roberts, Jr noted, “They think that complicity is sinful.”

The Justice Department argued that “an adherent may not use a religious objection to dictate the government’s conduct of its internal affairs” and allowing such objections “would have startling consequences, subjecting countless government programs to strict scrutiny.”

The justices will have to decide if the government’s arrangement satisfies the requirements of the Religious Freedom Restoration Act of 1993, which bars the government from burdening religious beliefs unless it has a “compelling interest” and uses the “least restrictive means.”

The Court previously ruled on this aspect of the Affordable Care Act in the Hobby Lobby v. Burwell case of 2014, when it split along ideological lines. In the 5-4 ruling, the court found that the chain of craft stores and other companies must be exempt from the mandate to provide contraceptive coverage to their employees.

That decision was reached when the court still included Justice Antonin Scalia, who died in mid-February. Since his death, if the eight remaining justices deadlock, the law could be administered differently depending on which court district objecting organizations and their employees are located in. The opt-out mandate has been upheld in eight of the nation’s regional appeals courts and overturned in one.