Year's Most Important Abortion Case Before Supreme Court

The Supreme Court heard a major case on the Affordable Care Act's birth control benefit on Wednesday, Zubik v. Burwell. 

You might think of Zubik as the sequel to Hobby Lobby. Both cases deal with contraception, religious freedom, and employer-sponsored health insurance. But while Zubik v. Burwell is less well-known than Burwell v. Hobby Lobby was, it might actually be a more important case.

"I think a victory for the plaintiffs here would largely confirm many of the worst fears that liberals had after Hobby Lobby," Ian Millhiser, a senior fellow at the Center for American Progress, told Vox. "Hobby Lobby opened the door to religious objections being used to diminish the rights of third parties, but Zubik will tell us if that's actually going to happen."

After hearing Wednesday's oral arguments, many court observers predict that a 4-4 split is the most likely outcome. Before, it looked more likely that the liberal side would prevail.

A split would send conflicting cases back to lower courts, and could cause a confusing situation where different regions of the country say different things about how contraception should be covered for employees of religiously affiliated institutions.

The oral arguments also suggested that a few justices don't actually understand how insurance coverage of birth control works, or why it's important for women to be able to access it along with all of their other health services.

Why is the challenge happening?

The Affordable Care Act requires insurers to cover all forms of contraception without any copays. That provision in particular offended a lot of social conservatives, which has helped fuel an endless series of legal challenges to both the birth control benefit and the ACA as a whole.

Since some religions like Catholicism have moral objections to birth control, and since many religiously affiliated employers provide health insurance, the Obama administration agreed to make two major exceptions to the contraception mandate:

Churches and houses of worship are entirely exempt. They can offer insurance plans with no contraceptive coverage, and their employees have to get other insurance if they want coverage for birth control. 

Religiously affiliated nonprofits, like Catholic hospitals or universities, can fill out a two-page form informing the government of their objection to providing birth control coverage. At that point the employer is no longer involved, and either the insurer or a third party deals with employees directly to provide them with no-cost contraceptive coverage. The employer doesn't cover the cost either, so insurers recoup their losses through reduced fees to the government. 

But the religious owners of the craft store chain Hobby Lobby wanted in on the exemption deal too, even though the company isn't a nonprofit. The Supreme Court basically granted their wish in the 2014 Hobby Lobby ruling, which found that "closely-held" for-profit corporations should also be exempt from providing contraceptive coverage if the owners object on religious grounds.

The Court didn't tell the Obama administration exactly how it should handle this, but Justice Samuel Alito suggested offering for-profit religious corporations the same accommodation that religious nonprofits get. That's exactly what the Obama administration ended up doing. So while there's an extra bureaucratic hoop to jump through, the employees of Hobby Lobby and other objecting for-profit corporations can still get access to no-cost birth control.

Meanwhile, dozens of evangelical Christian and Catholic religious nonprofits — schools, hospitals, nursing homes, and the like — decided that the Obama administration's accommodation wasn't good enough for them. They argued that even just filling out the form makes them complicit in "sin," because it "triggers" or "facilitates" access to birth control.

The groups sued, claiming that the accommodation violates their rights under the Religious Freedom Restoration Act (RFRA) — the same act the Hobby Lobby decision was based on. (RFRA was a law passed in 1993 that tried to strengthen protections for religious freedom after the Supreme Court ruled against Native American tribes in several cases on religious burdens.)

The most well-known plaintiffs in the seven cases the Supreme Court will consider in Zubik are the Little Sisters of the Poor, a group of Catholic nuns who run nursing homes in Maryland and Colorado. They are sympathetic characters, and their involvement has led to hyperbolic claims from the right that Obama is "forcing" nuns to provide or pay for birth control against their will.

What are the arguments for and against the case?

The plaintiffs say it's not the paperwork itself that's burdensome; it's about being made complicit in something they deeply oppose, and facing a financial penalty if they refuse to comply.

In a New York Times op-ed, Constance Veit of the Little Sisters of the Poor compared it to schools banning soda machines: "It doesn’t matter that the soda companies will pay for the machines. And the school’s decision doesn’t prevent children from getting soda elsewhere. The school simply doesn’t want to be responsible for providing something it believes is bad for its students. It is the same with us."

But some of the plaintiffs also seem concerned about the purity of their insurance plans and the companies that provide them. They object that the "infrastructure" of their plans will be used to provide birth control coverage.

In his oral argument on behalf of the plaintiffs, Paul Clement spent a lot of time on this idea that insurance plans were being "hijacked" to provide a service the plaintiffs find morally objectionable. Justice Anthony Kennedy, who will almost certainly be the swing vote, echoed the term "hijack" in one of his questions, suggesting that he found it persuasive. 

Veit also mentioned this idea in her op-ed: "What Health and Human Services is calling an 'opt-out' is really an 'opt-in' — a permission slip where we authorize the use of our religious health plan to offer services that violate our beliefs and waive our protections under federal civil rights laws."

The term "religious health plan" is important, because federal law actually prohibits government regulation of employee benefits run by churches under the Employee Retirement Income Security Act of 1974 (ERISA). Little Sisters of the Poor has one of these "church plans."

This is where the Little Sisters case in particular gets strange, according to the Obama administration — even if the nuns lose the case and have to fill out the exemption form, their employees still can't get birth control through their church plan. That's not true for all of the plaintiffs, though; most of them have self-insured plans that will be covered by the ACA's birth control mandate.

Critics argue that all of this actually tips the plaintiffs' hand — that what they really care about isn't taking immoral actions to provide birth control themselves, but rather the fact that the government is requiring insurers to provide birth control in the first place. They're trying to control the actions of third parties, critics say, and religious liberty doesn't allow you to do that.

"Even if employers were required to do absolutely nothing, the insurance companies would still use the 'infrastructure' of any insurance plan that the employers voluntarily offered to their workers," writes Douglas Laycock, a law professor at the University of Virginia, in an op-ed for the Washington Post. (Laycock is a leading RFRA advocate, and for the first time in his career is filing an amicus brief in support of the government in a religious liberty case.)

Arguing for the government, US Solicitor General Donald Verrilli said that there's no "hijacking" going on here — the plans operate in "parallel." Moreover, the insurer is a third party and a separate entity from the plaintiffs, so what the government requires them to do shouldn't matter as long as the plaintiffs don't have to pay for or administer the plans that include contraceptive coverage.

The administration and critics of the case also argue that the very presence of an opt-out means that nuns and other objectors aren't complicit in anything. Just because they object doesn't mean they can prevent their insurance plans from offering birth control at all through other means.

As legal analyst Jessica Mason Pieklo noted at Rewire, "The employees and students are going to obtain birth control whether the organizations want it or not." When the Seventh Circuit Court of Appeals ruled against the University of Notre Dame, Judge Richard Posner said that signing the form doesn't actually "trigger" birth control coverage, because the ACA already entitles the organization's employees to that coverage by default. The exception allows religious employers to not be involved in that coverage, but that doesn't extend to the employers' insurers.

Barry Lynn, the executive director of Americans United for Separation of Church and State, also pointed out to reporters on a Monday press call that in other circumstances, religious objectors have to do a lot more than fill out a two-page form. Conscientious objectors to the military draft, for instance, have to write a detailed personal statement explaining their reasons.

Justice Sonya Sotomayor led off the oral arguments with a question about that very concept. She also said that conscientious objectors to the draft sometimes went to jail in order to try to keep someone else from going to war in their stead — so why is it unacceptable for the plaintiffs to pay a fine if they feel so strongly about refusing the government's opt-out option?

What's at stake?

Both sides argue that religious freedom itself could be at stake.

The plaintiffs say their religious freedom will be infringed upon if they are forced to comply with the administration's accommodation.

The administration's side argues that if the Court rules in favor of the plaintiffs, it will open the door to a limitless number of dubious religious exemptions that the courts have no way to evaluate, and would weaken or destroy the very idea of religious exemptions as a result.

Laycock argued in his op-ed that believers have never been given absolute deference on the question of what burdens their beliefs; the court always has some say. If that's no longer the case, he said, it would result in a rise in "extreme claims" that could "discredit the cause of religious liberty."

Also at stake is the "autonomy, dignity, and religious liberty of women" who use birth control, said Claire Markham, campaign manager at the Center for American Progress's Faith and Progressive Policy Institute. A victory for the plaintiffs could also create serious practical hurdles, she said — either a lot more organizations could be entirely exempt from providing birth control coverage or the administration would have to find a new accommodation to the accommodation. That could result in "so much bureaucracy that birth control becomes inaccessible for potentially hundreds of thousands of women."

LGBTQ rights advocates are also worried about what a victory for the plaintiffs could mean for their community, both those who use birth control and those who don't. Rea Carey, executive director of the National Gay and Lesbian Task Force, speculated on the press call that it could open the door to employers refusing to buy plans that cover PrEP, which many gay and bisexual men take to prevent HIV, or doctors refusing to treat a transgender woman with breast cancer.

Who is more likely to win?

Again, the outcome will come down to how the Court interprets RFRA.

RFRA says that the government cannot "substantially burden" a person's exercise of religion, unless it is furthering "a compelling governmental interest" using the "least restrictive means" possible.

So there are a couple of key questions here. Is filling out a form to comply with the administration's religious accommodation a "substantial" burden on religion? Does the government have a "compelling interest" in providing no-cost contraception to all of its citizens who need it? (Even the majority in Hobby Lobby presumed that this is the case, given the medical benefits to women of preventing unplanned pregnancies.) And does that compelling interest outweigh any potential religious burden on objectors? If so, is the accommodation actually the "least restrictive means" of accomplishing that goal — in other words, does it restrict religious freedom as little as possible?

The plaintiffs essentially argue that a burden is "substantial" if they say it is. Millhiser notes that Justice Alito pretty much accepted this logic in Hobby Lobby, which could be bad news for liberals. Much worse for liberals is that Kennedy seemed to accept it in this case too. 

The arguments about whether the administration's accommodation is the "least restrictive means" to further the government's interest devolved into a bizarre, frustrating exchange wherein Roberts and Alito seemed not to understand how insurance works, particularly for contraception. They repeatedly asked why the government couldn't just provide a separate, contraception-only plan for women on the exchanges — an option the plaintiffs said they'd be fine with. 

This idea has a slight problem, Verrilli explained to little avail: it wouldn't work. It would totally defeat the government's purpose, which is to make sure that women have "seamless" access to coverage for birth control and are more likely to use it. It would lead to an inconceivable administrative headache for women seeking coverage, insurers, and the government, and it would require women to have two different insurance plans that might not even cover the same doctors — assuming that any insurance company would agree to offer such an impractical plan in the first place. 

Alito and Roberts didn't seem to care about any of this. They seemed to care that the plaintiffs thought this was a better, less "restrictive" idea, but not about whether it would work or whether it would allow the government to achieve the "compelling interest" that it aimed for in the first place. 

That leads us to the other major question in this case: whose religious freedom are we talking about? The administration and liberal civil rights advocates argue that employees of religious nonprofits, not to mention their family members who depend on their insurance coverage, also exercise religious freedom when they decide whether or not using contraception accords with their personal beliefs.

Denying them coverage for a benefit that the rest of the population gets by default goes beyond respecting the religious freedom of their bosses, critics say — it actually intrudes on the religious freedom of the workers.

Little Sisters of the Poor doesn't just employ nuns, Lynn noted on the press call; they run a nursing home, and nursing homes disproportionately employ low-income women of color who are less likely to have adequate access to birth control.

This argument about infringing on employees' religious liberty also came up in Hobby Lobby, but it didn't convince the majority. However, the way the justices wrote their opinions in that case provides some clue as to how they might rule in this one.

Before Wednesday, it looked like the liberal side was going to prevail. That's true for several reasons:

Alito's opinion in Hobby Lobby suggested that the administration's birth control accommodation (filling out the form to hand off coverage to insurers) was actually the "least restrictive means" available, which is why he ruled that for-profit religious corporations like Hobby Lobby should also be able to use it. If he rules that the same process is too restrictive of religious liberty in this case, he'd probably have a tough time explaining why.

Kennedy's concurring opinion in Hobby Lobby made a similar argument, and also suggested that he's not comfortable with the idea of letting religious liberty "unduly restrict other persons, such as employees, in protecting their own interests." 

Justice Scalia's death means that the "best" outcome for the plaintiffs is a 4-4 split, which upholds the lower court decisions.

All but one of the nine lower court decisions so far have found in favor of the government — including the very conservative Fifth Circuit Court, which has upheld severe abortion restrictions in Texas. 

But it all comes down to which arguments Kennedy finds more persuasive, and whether the court will take this case up again in the future to resolve the lower-court split once it has nine justices again.

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Vox / by Emily Crockett / March 24, 2016