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Analysis Law and Policy

Justices Against ‘Hijacking,’ and Other Unsettling Details From the ‘Zubik v. Burwell’ Oral Arguments

Greg Lipper

It’s 2016, and lawyers are still arguing about birth control.

It’s 2016, and lawyers are still arguing about birth control. On Wednesday, the Supreme Court heard oral arguments in the second direct challenge to the Affordable Care Act’s contraceptive coverage requirements.

There was some cause for optimism coming into Wednesday’s argument in Zubik v. Burwell. Eight of nine federal appeals courts—including the ultra-conservative Fifth Circuit—have upheld the accommodation process for religiously affiliated nonprofits wanting to opt out of providing the birth-control coverage. Might the Supreme Court finally send these Affordable Care Act challenges to the great courtroom in the sky?

Not so fast: When it comes to reproductive rights, trips to the Supreme Court are always dicey. Wednesday’s oral argument reveals, on the one hand, that the justices on the Court’s liberal wing believe that the accommodation imposes no substantial burden on religious exercise and is necessary even if it does. On the other hand, Chief Justice John Roberts and Justice Samuel Alito (and presumably Justice Clarence Thomas) clearly think that the accommodation burdens the objectors’ religious exercise and cannot otherwise be justified.

That leaves Justice Anthony Kennedy. Despite praising the accommodation as an appropriate option for objecting for-profit corporations in 2014’s Burwell v. Hobby Lobby, on Wednesday Justice Kennedy seemed hostile to the accommodation and willing to require affected women to jump through yet more hoops. His vote is not certain, and he does raise some serious concerns about the arguments posed by the challengers too. But the oral argument was unsettling all the same.

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In the course of discussing the issues detailed below, the challengers and the conservative justices suggested that anything and everything may be treated as a substantial burden on religious exercise. And as in Hobby Lobby, women’s interests in receiving contraceptive coverage—and receiving it seamlessly—seemed to get short shrift.

1. Does the accommodation substantially burden religious exercise?

The religious objectors spoke first at oral argument, and right away, several of the liberal justices wanted to know how requesting a religious exemption could possibly constitute a substantial burden on religious exercise. After all, they pointed out, the government can’t grant an exemption without knowing who wants to be exempt, and surely the government is entitled to make arrangements to protect the people who would otherwise be harmed by the exemption.

Nevertheless, Paul Clement, representing one group of the plaintiffs, insisted that the challengers object not to requesting the exemption, but to what happens after they request it: the government’s arranging for the objectors’ insurance company or plan administrator—that is, for third parties—to provide contraceptive coverage to affected women at no cost to the objectors. In response, Justice Sonia Sotomayor warned that if the opt-out process itself is deemed a substantial burden on the objectors’ religious exercise, then anything and everything could become a substantial burden: “[E]very believer that’s ever come before us, including the people in the military, are saying that my soul will be damned in some way. … But if that’s always going to be substantial, how will we ever have a government that functions?”

And as is his custom, Justice Stephen Breyer elaborated—reiterating that virtually anything could be a substantial burden under the objectors’ theory of the case:

Think of the Quakers, the Quakers who object to Vietnam. Think of the people who object to laws protecting blasphemy. Think of the people who object to shoveling the snow in front of the walk that will lead to the abortion clinic. Think of the Christian Scientists who know when they report the accident, the child will go to the hospital … and receive medical care that is against their religion. So there are loads of things.

Justice Kennedy, however, didn’t seem to be bothered by these implications. Indeed, he later suggested to the government’s lawyer, U.S. Solicitor General Donald Verrilli, that if the objectors sincerely believe that the accommodation makes them complicit in the provision of contraceptive coverage, then they are necessarily suffering a substantial burden:

JUSTICE KENNEDY: Well, do—do you question their belief that they’re complicit in the moral wrong?

GENERAL VERRILLI: No, we do not.

JUSTICE KENNEDY: Well, then—then it seems to me that that’s a substantial burden. And then—and the next question is whether there is an accommodation and whether that’s the least restrictive.

On this view, shared by half the Supreme Court, literally anything can be a substantial burden; the entire federal code, as a result, is a candidate for intrusive review under the standard of “strict scrutiny.”

2. Does the contraceptive accommodation advance a compelling governmental interest?

But strict scrutiny isn’t necessarily fatal. Even if the accommodation substantially burdens the objectors’ religious exercise, the government may enforce it if it advances a compelling governmental interest and is the least-restrictive means of doing so. On the question of compelling interest, Justice Ruth Bader Ginsburg noted that before the Affordable Care Act, many health plans omitted coverage for contraceptives, and that the Affordable Care Act hence sought to solve that problem and ensure that women finally receive this essential coverage.

Representing the other set of plaintiffs, Noel Francisco (joined at one point by Justice Alito) faintly suggested that contraceptive coverage isn’t as important for women at religiously affiliated entities. But Justice Sotomayor shut that down forthwith:

FRANCISCO: Well, Your Honor, because I think—

JUSTICE SOTOMAYOR: We are worried because there are some women who don’t adhere to that particular religious [tenet], and who have—we perceive the government has determined, have a real need for contraceptives.

FRANCISCO: And, Justice Sotomayor, I think that goes to the larger problem with the government’s case here, which is the utter absence of evidence. Let’s assume, for the sake of argument—

JUSTICE SOTOMAYOR: What is the utter absence? There is plenty of evidence that was relied upon to show that when contraceptives are provided to women in a seamless way, that the number of unintended pregnancies dramatically falls, as does the number of abortions. And so that health risk to women who want contraceptives who can’t get it is proven, scientifically and otherwise.

As Justice Sotomayor alluded to, studies confirm that most religious women have used contraception and that contraception is equally important for many of the millions of women who work or study at religiously affiliated entities.

Rather than confront this data directly, the challengers pointed to the coverage regulations’ other exemptions, such as the one for houses of worship, suggesting that if the government’s interest were truly compelling, then the government wouldn’t have created these other exemptions. Put another way, Clement and Francisco maintained that if churches get an exemption, then other religiously affiliated entities—including large universities, such as Notre Dame—must get one too.

Yet this argument—anything that churches get, we should get too—was a bridge too far, even for Justice Kennedy.

It’s going to be very difficult for this Court to write an opinion which says that once you have a church organization, you have to treat a religious university the same. I just find that very difficult to write,” he told Francisco.

At that point, Justice Elena Kagan pounced, pointing out that if all exemptions had to be that broad, then Congress would be deterred from providing exemptions to anyone, even houses of worship:

JUSTICE KAGAN: … [I]f you’re saying that every time Congress gives an exemption to churches and synagogues and mosques, that they have to open that up to all religious people, then the effect of that is that Congress just decides not to give an exemption at all. And that’s why there are some people who are extremely strong [Religious Freedom Restoration Act (RFRA)] supporters who have deserted this cause right here, Professor Laycock among them, because of the mortal danger that it poses to churches.

The Professor Douglas Laycock to whom Kagan referred is a staunch RFRA supporter who backed Hobby Lobby two years ago, but even he opposes the objectors’ claims in these cases. In both his brief to the Supreme Court and an op-ed for the Washington Post, he warned that the objectors’ argument poses “a mortal threat” to religious liberty.

“There are thousands of specific religious exemptions in U.S. law. If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become all-inclusive, many of them will not enact any religious exemptions at all. And they will start repealing the exemptions they have already enacted,” he wrote in the Post.

And while Zubik involves nonprofit organizations, waiting in the wings are Hobby Lobby and the other for-profit challengers from the previous round of cases. Those corporations employ tens of thousands of people, they haven’t accepted the accommodation either, and they too will inevitably seek to take advantage of a decision striking down the accommodation.

So if the objectors have their way, the government will need to treat both nonprofit organizations and for-profit corporations like churches. In the short run, this will yield a system of religious haves and secular have-nots. In the long run, religious exemptions will dry up—even for churches. It’s these concerns that perhaps leave Justice Kennedy’s vote in play.

3. Is there a less-restrictive way to achieve the government’s interest?

Throughout the argument, Verrilli reiterated that the government needs to apply the accommodation to ensure that women who work or study at religious institutions retain seamless access to contraceptive coverage. Sure, the objectors have proposed alternatives, such as allowing contraceptive-only policies to be sold on the exchanges, having the government provide contraceptive coverage itself, or expanding the government contraceptive program for low-income women. Yet each of these alternatives, Verrilli explained, would require a change in the law; and even if the law could be changed, “every single one of them creates the very problem that Congress was trying to solve in this provision because it would require setting up a one-off [jury]-rigged separate channel to get contraceptive coverage.”

And at this point, the argument really devolved. Verrilli explained why the alternatives don’t ensure that women receive seamless access to contraception. In response, the conservative justices downplayed and at times belittled the government’s concerns.

Justice Alito, for example, appeared to have no problem with forcing women to obtain a separate policy purely for contraceptive coverage. “So she’ll have two insurance cards instead of one,” he said.

Verrilli pointed out that the obstacles are far more serious, noting that the woman in question would have to find an insurance company willing to sell the separate coverage and a doctor willing to accept it.

Alito speculated: Wouldn’t they create them if the government subsidized them?

Verrilli returned to his core point. “But the whole point here, Justice Alito, is that Congress wanted to eliminate—even what were perceived by most of the small barriers, like a five- or ten-dollar co-pay, because the medical experts said that even though small barriers—even when you’re getting it as part of your regular coverage, even those small barriers work as a sufficient disincentive that many fewer people use contraception than would otherwise.”

And on and on it went.

It seemed like the government and affected women couldn’t win. Verrilli pointed out that there’s no burden on objectors because someone else is paying for contraceptive coverage. In response, Justice Kennedy asked, “If it’s so easy to provide, if it’s so free, why can’t they just get it through another plan?” So then Verrilli had to review—yet again—the importance of seamless, coherent coverage:

GENERAL VERRILLI: Well, because they have to sign up for a second plan and pay for a second plan, Your Honor. And that’s precisely the kind of obstacle that Congress is trying to [ensure] did not exist when it passed the Preventive Services provision of this statute. The whole idea here is to ensure that these employees get the health care, get this covered, get this care from their regular doctor as part of their regular health care without these added obstacles and the need to go out and sign up for another plan and then find the doctors who are going to provide coverage under that plan. All of those are precisely the kinds of obstacles that Congress was trying to eliminate.

But somehow, in response to that description, the chief justice asked, “So it comes down to a question of who has to do the paperwork?” Verrilli again described the real practical and logistical difficulties that women encounter—in other words, it’s not just paperwork. And in response, the chief justice again described the problem as mere “paperwork.”

In short, the serious practical barriers addressed by the accommodation were barely acknowledged by the conservative Justices.

4. Why does everyone keep dropping the H-word?

Even more importantly, the challengers and the conservative Justices sought to use the government’s interest—in ensuring that women have seamless access to contraceptive coverage—to suggest that the government is impermissibly “hijacking” the objectors’ health plans.

Clement started it off: “And with all due respect, it’s a little rich for the government to say, This isn’t your plan, don’t worry about this, when their whole interest is put in terms of seamless coverage. If it’s seamless to the [insurer], then I don’t think the Little Sisters’ perception that it’s seamless to them, and they are, in fact, complicit is an irrational belief by any stretch.” The government, Clement added, is “going to hijack our health plans and provide the coverage against our will.”

The fear of hijacking might have made sense if we were talking about a plane instead of a plan. But an insurance company is not an employer’s personal property. If the insurance company, separately from the employer, wants to provide extra coverage to the employees, that’s none of the employer’s business—especially since that contraceptive coverage is guaranteed to women by federal law. At the argument, Clement compared the accommodation to the government running a contraception clinic out of the Little Sisters’ home, but the more apt analogy is that the government has set up shop across the street: The challengers simply have no legitimate interest in preventing the government from “hijacking” a nearby vacant lot.

No matter. During the solicitor general’s argument, the chief justice embraced the “hijacking” motif:

CHIEF JUSTICE ROBERTS: The point is that it’s the form in which the services are provided that you object to, not the fact that they be provided or not, because that’s not the question. In other words, the Petitioner has used the phrase “hijacking,” and it seems to me that that’s an accurate description of what the government wants to do. They want to use the mechanism that the Little Sisters and the other Petitioners have set up to provide services because they want the coverage to be seamless.

Soon, Justice Kennedy joined the fray. In an exchange that gives accommodation supporters heartburn, Justice Kennedy likewise dropped the H-word:

GENERAL VERRILLI: No. I think that the point, Your Honor, is that Congress and the Institute of Medicine—Congress made a judgment here that this does impose a very significant obstacle with these kinds of requirements, result in significantly less use of medically-necessary services.

JUSTICE KENNEDY: That’s why it’s necessary to hijack the plans.

If Justice Kennedy has truly gone from treating the accommodation as a reasonable compromise (as he did in Hobby Lobby) to an exercise in hijacking (as he seemed to do in these cases), then the government and affected women are unlikely to get his vote. Time will tell.

But in the meantime, it’s almost impossible to imagine that multiple justices would see “hijacking” in a comparable attempt to accommodate, say, the employees of a Hindu-owned company with objections to covering gelatin-covered blood-pressure medicine or the students at a Jehovah’s Witnesses-affiliated university that was seeking to block coverage for blood transfusions. Or, really, in any other attempt to accommodate health care that’s relied on by men of a certain age. Once again, several members of the Court seem to think that contraception is just different—second-tier care to which access is treated as a luxury, not a right.

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