On Wednesday, the US supreme court heard oral arguments in Zubik v Burwell. The case challenges the Affordable Care Act requirement that employers include contraceptive coverage in taxpayer-subsidized health plans, with potentially negative ramifications for women nationwide should the court rule against the government.
The arguments suggest, however, that the issue will remain unresolved by a shorthanded court likely to split 4-4, which may well be the best-case scenario under the circumstances.
In the wake of the supreme court’s controversial 2014 holding in Burwell v Hobby Lobby that in some cases the requirements violated the religious rights of employers, the federal government offered a way for employers with a religious objection to providing contraceptive coverage to exempt themselves without denying the rights of their employees. Employers could simply send the government a form announcing their objection, and the government would provide the plan that covered contraception without the involvement of the employer.
For some religiously affiliated employers, however, this still wasn’t enough. They challenged the new plan, arguing that they remained complicit in actions that were contrary to their religious values. Most, but not all, lower courts that heard the issue have sided with the government. The supreme court took on this case to clarify the legal status of the new regulation.
The legal arguments against the contraceptive mandate are based on the Religious Freedom Restoration Act of 1993. It forbids federal regulations that impose a “substantial burden” on religious freedom unless it can be shown that the regulation is the least restrictive means of advancing a compelling government interest. (Based on current law, the contraceptive mandate plainly does not violate the first amendment’s guarantee of the free exercise of religion.)
Even in the original Hobby Lobby case, the claim that the regulations imposed a “substantial burden” on employers was a major stretch. The regulations did not require any employer to purchase or use contraceptives or to advocate for their use. And in addition, exempting employers would constitute a genuine burden on employees who would be denied their legal rights based on religious objections they do not necessarily share. The court did not take these third-party harms appropriately into account.
Still, five supreme court justices ultimately agreed that the original regulations constituted a “substantial burden” on objecting employers. This argument, however, is even tougher to make this time around given the government’s new accommodation.
The liberal justices made it clear that they agreed that the new regulations are not a “substantial burden” under Hobby Lobby.
But Justice Anthony Kennedy, the only Republican-appointed justice who seemed to have any chance of providing a fifth vote for the government, seemed unconvinced that the regulations were adequate. “It seems to me that that’s a substantial burden,” Kennedy informed the solicitor general, Donald Verrilli, at one point. Chief Justice John Roberts and Justice Samuel Alito, for their part, left no doubt that they would vote against the government. In contrast to their relatively subdued performance at oral arguments in the recent case about Texas abortion regulations, the conservative justices attacked the government’s position aggressively on Wednesday.
Because of the recent death of Justice Antonin Scalia, if all four Republican-appointed judges side against the government, the result would be a 4-4 split. All lower-court opinions would remain in place, which means most affected women would retain their access to contraceptives even if their employers object. However, women in the states covered by the eighth circuit – Arkansas, Iowa, Minnesota, Missouri, Nebraska and North and South Dakota – could lose access if their employers object, because that court found the regulation invalid.
Given that Senate Republicans are almost certain not to confirm Merrick Garland – or any other nominee – many areas of federal law are likely to end up equally unsettled, which is a serious potential problem. In this case, however, a full supreme court almost certainly would have ruled against the government. A deadlock isn’t ideal, but since the regulation will remain in effect in most of the country, it’s not a terrible outcome for the time being.
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