The Supreme Court heard arguments in Zubik v. Burwell Wednesday, the case in which a number of non-profits are arguing against a provision of Obamacare that requires employers to provide health insurance coverage that includes birth control. These non-profits argue that the accommodation made for them by the government, that they notify either their insurance company or the federal government that they object so the coverage can be obtained otherwise—with no burden on the employee—is a substantially religious burden. Questions on what constitutes a burden and to whom comprised a large part of the arguments.
At oral argument Wednesday, attorney Paul Clement argued for the plaintiffs that what the government calls an "accommodation" is religiously offensive to his clients because it involves them in sin. He even compared the "hijacking" of the insurance plans to cover contraception to the government renting out a room in a nun's home to run a free birth control clinic. "Just because this is more intangible, I don't think the principle is any different," Clement said.
Solicitor General Donald Verrilli, once again defending the provision of the Affordable Care Act, asked the court to think about the female employees who don't share the religious beliefs of their employers, and whose equal access to seamless coverage of birth control was at stake. "Consider this, please, from the perspective of the woman employee," he said. With the alternative proposed by the plaintiffs, she might have to buy a separate plan on the exchanges just for contraception, and possibly have to seek a different doctor just for that care.
"The whole point here," Verrilli told Justice Samuel Alito, "is that Congress wanted to eliminate even what were perceived by most [as] the small barriers … Even those small barriers work as a sufficient disincentive that many fewer people use contraception than would otherwise."
Chief Justice John Roberts made clear where he's leaning: "It's a question," he said "whether you want the employee to sign a paper or you want the Little Sisters to sign a paper. In the one case, it's an administrative burden as you've said. In the other case, it's a violation of a basic principle of faith." That "administrative" burden would require the employee who needs the coverage to find her own insurance plan and possibly her own doctor. The majority of appeals courts—seven out of eight—which have ruled on the case disagree with Roberts on this one. But the liberal justices didn’t stand for that.
They also homed in on when the objections from these groups would ever end—would there ever be a work-around of the requirement which they wouldn't object to. Justice Sotomayor boiled down that discussion: "If we are not asking you to do anything except identify yourself, and if who is going to do the action is either the government or a third party, that that's the balance that we have struck. That it's not a substantial burden if someone else is going to do the act that you're objecting to." While she didn't question the sincerity of the objections of the plaintiffs, where did it end? The government already set up a mechanism for them to object and they can't object to what the government sees as objecting. Justice Kagan continued the thought: "Your theory of the case says that everything depends on a person coming in saying this is against my religion, and that being the end-all and the be-all."
As in every case on the law, the question remains where swing vote Justice Anthony Kennedy stands. He echoed the plaintiffs' language when using the word "hijack" to characterize the government's action on these plans and the accommodation, but questioned both sides carefully. He's, as usual, an unknown quantity—will he decide that enough is enough with Obamacare challenges and make the decision final by siding with the liberals? Will it be a 4-4 decision that leaves a good chunk of the country following entirely different law from the rest of the country? Or will the court decide that it can't decide until there are nine justices? We probably won't know until June.