(Bloomberg View) — The U.S. Supreme Court looks like it's going to split 4-4 on whether religious organizations are entitled to have even their health insurance providers exempted from providing contraceptive care through the Patient Protection and the Affordable Care Act (PPACA) contraceptive benefits package. That much was clear from the justices comments at oral arguments on Wednesday.
That will leave unresolved the vexing legal questions at the heart of a challenge to the Obamacare preventive services package brought by the Little Sisters of the Poor: What is religious freedom and what does it mean for a law to impose an unacceptable burden on religious practice?
Specifically, is it a substantial burden on a religious employer to require its insurance carriers to provide contraception, even if the employer doesn't have to pay a penny for it? The phrase "substantial burden" was originally a constitutional test, and it's now a statutory one under the federal Religious Freedom Restoration Act (RFRA) and its many state imitators – so it's a phrase worth thinking about seriously.
It wasn't always clear that the "substantial burden" test would be the central issue in the case now before the court, Little Sisters of the Poor v. Burwell. At one time, it seemed to me that the litigation could turn on whether the Little Sisters and other non-church religious organizations could be required to file a form asking for an exemption from the contraceptive coverage mandate.
But at Wednesday's oral argument, Paul Clement, the former solicitor general representing the religious petitioners, made it clear that his clients weren't objecting to a filing requirement.
Instead, Clement said that the essence of his case was that the religious organizations are substantially burdened by the way the law creates a contraceptive exemption for them, which is different from the way the law exempts churches. Churches are totally exempted from providing contraceptive care to their employees. Other religious organizations fall under a subtly different legal regime. Once they tell the government they don't want to provide contraceptive care, the government tells their insurance carriers to provide the care to the employees at no cost to the religious organization.
To the Little Sisters, this mechanism renders them complicit in the sinful provision of contraception. Their position is that it's their employee insurance plan, chosen by them and administered through the same caregivers as their regular plan. To them, their plan is being "hijacked" by the government to provide contraceptive care. Chief Justice John Roberts picked on the hijacking metaphor and seemed to find it persuasive.
The reason this position is so significant is that the government's view is 180 degrees opposed. Solicitor general Donald Verrilli argued that the reason for the scheme is precisely so that the same health care plan and same doctors who give employees all their other care will also provide contraceptive care. Prompted by Justice Stephen Breyer, Verrilli said that "seamless" care is necessary – indeed, a compelling state interest — because lots of women who need contraception might not seek it if they have to buy a separate insurance plan to cover it.
Under the religious freedom law, the court must first determine if the religious organizations are under a substantial burden. If they are, then the government must have compelling interest, and its plan must be narrowly tailored to meet that interest.
The government would be happy to win its case at either stage. But it has a problem. The court ruled in the 2014 Hobby Lobby case that Obamacare imposed a substantial burden on companies that wanted to deny contraceptive coverage to their employees. Under that precedent, the government wouldn't be able to show that the exemption for the Little Sisters was narrowly tailored, because the U.S. Department of Health and Human Services (HHS) provided an easier exemption for churches, and so could logically meet the religious organizations' needs that way.
For that reason, the liberal justices seemed focused on arguing that the religious organizations aren't suffering a substantial burden, since they don't have to pay for the contraceptive care.
This position requires a very fine distinction. Verrilli conceded that the government wasn't disputing the sincerity of the Little Sisters' claim that they're complicit in sin under the exemption scheme. Rather, he maintained that despite their beliefs, the religious organizations aren't substantially burdened under the religious freedom law.
