When push comes to shove, which carries greater constitutional weight: the First Amendment’s guarantee of religious liberty or the government’s insistence on involving some religious groups in providing contraception — including abortion-causing drugs — to employees?
That in a nutshell is the question being weighed by the Supreme Court in what is popularly known as “the Little Sisters of the Poor case.” What the answer will be, or even whether we will get one now, is not so clear — although following oral arguments March 23 and a subsequent request by the Supreme Court less than a week later, things seem more hopeful for the religious employers.
Less than a week after the Supreme Court heard oral arguments about the Affordable Care Act's contraceptive requirement, the court released an order requesting that additional briefs be submitted showing if and how contraceptive insurance coverage could be obtained by employees through their insurance companies without directly involving the religious employers objecting to this coverage.
The order was released the afternoon of March 29, just six days after the justices heard oral arguments in Zubik v. Burwell, a consolidated case involving the Little Sisters of the Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, and the Archdiocese of Washington.
To many observers, the Supreme Court appeared divided 4-4 during the March 23 oral argument. But the court's March 29 order suggests that justices are looking for a compromise. Specifically, the court outlined the procedures that objecting religious employers must follow if they do not want to provide insurance coverage of contraceptives and went on to suggest that the groups could contract a third party to provide health insurance for their employees, but they would need to inform the insurance company that they did not want the plan to include contraceptive coverage that they find objectionable.
The insurance companies, the order said, could "separately notify petitioners' employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners' health plan."
With the plan, the objecting religious employers would not have to submit a form to the government or their insurance companies about the coverage.
The Supreme Court's order also pointed out that the parties involved in this case may have "other proposals along similar lines," but they should avoid repeating what they mentioned in previous briefings.
The additional information should be submitted by April 12 and should be limited to 25 pages for the petitioners and April 20, and no more than 20 pages, for respondents, the order said.
Despite the changes, the final decision in Zubik v. Burwell is still expected by the time the court’s term ends in late June. If the result is a tie, lower court rulings — most upholding the government but one last September by the 8th Circuit Court of Appeals supporting religious groups — will stand, though with the constitutional question unresolved. The Supreme Court also has the option of ordering a re-hearing when it has nine members again.
This reflects the court’s situation in the wake of the February death of Justice Antonin Scalia. Most court observers assume that in Zubik, the conservative Scalia would have voted to uphold the religious groups.
President Barack Obama has nominated Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia to succeed Scalia, but the nomination is hung up in a fight between Obama and Senate Republicans. Obama has put two liberals on the Supreme Court already — Justices Sonia Sotomayor and Elena Kagan — and conservatives appear determined to keep him from filling another seat.
Battle for religious liberty
Questioning during the oral argument suggested the court’s four liberals — Justices Ruth Bader Ginsburg and Stephen Breyer, along with Sotomayor and Kagan — take the government’s side, and the three conservatives — Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — stand with the religious groups.
Justice Anthony Kennedy, the court’s swing vote, indicated he may do the same. Kennedy told U.S. Solicitor General Donald Verrilli, arguing for the government, that the religious groups may be right in accusing government of “hijacking” their employee health plans by using them to provide coverage for contraception.
At issue in the dispute is a so-called accommodation by the government allowing affected religious employers to opt out of paying for the contraception coverage. The religious groups argue that notifying the government of their objections, as they are required to do, itself sets the wheels in motion for the objectionable coverage.
During the oral argument, Justice Samuel Alito noted that a “great array of religious groups … not just Catholics and Baptists and evangelicals” regards this as an “unprecedented threat to religious liberty.”
Under existing federal law, the government is forbidden to violate religious liberty except for a compelling reason that it has no less burdensome way of accomplishing. If the government wants to provide the employees of religious groups with contraception, the objectors say, it can find ways that don’t involve them.
In his closing argument, former Solicitor General Paul Clement, attorney for the religious groups, said they “would love to be a conscientious objector, but the government insists that they be a conscientious collaborator.”
‘Continue to do this work’
The Supreme Court in June 2014 ruled 5-4 that “closely held” for-profit entities with religiously based objections to the contraception coverage don’t have to provide it. Houses of worship and some narrowly defined religious institutions have been exempt from the start. The “accommodation” contested in the Zubik case would extend the exemption to some other religious institutions but not all.
In a statement after the oral argument, Sister Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor, which operates homes for the elderly, said the order faced government fines up to $70 million a year for not complying with the contraception mandate. “All we ask is that we can continue to do this work,” she said.
This case is one of three of particular interest to religious groups now being weighed by the Supreme Court. The other two involve a Texas law setting standards for abortion clinics and the refusal of the state of Missouri to allow public funds to be spent to upgrade safety at a playground operated by a Lutheran church.
Russell Shaw is an OSV contributing editor. Catholic News Service contributed to this report.
A version of this story appears in the April 10, 2016, issue of OSV Newsweekly on page 6.