The suit, Zubik v. Burwell, marked the court’s second case on the birth control requirement and the fourth on the Affordable Care Act. | Getty Divided Supreme Court hears Obamacare birth control challenge The suit marks the court’s second case on the birth control requirement and the fourth on the Affordable Care Act.

A sharply divided Supreme Court on Wednesday considered whether Obamacare's birth control coverage requirement violated the rights of religious institutions, with Justice Anthony Kennedy — the likely swing vote — voicing concern about how big a loophole the court might create if it rules for the challengers.

Kennedy suggested that large institutions like Catholic universities shouldn't be able to get out of the employee coverage requirement while others challenging the requirement such as the Little Sisters of the Poor order of Catholic nuns, perhaps should warrant an exemption.


"It’s a very difficult thing for this court to write an opinion where if you have a religious exception, you have to treat a university the same," Kennedy said. "I just find that very difficult to write."

But even Kennedy didn't seem like a lock for the Obama administration's case, as he repeated Chief Justice John Roberts' comment that the government was trying to "hijack" the Little Sisters' health plans.

The other justices on the short-handed, eight-member court appeared to split along partisan lines. The liberals lined up behind the government's argument that it has a strong public health interest in providing contraception in employee health plans. The conservatives were more sympathetic to the religious groups' objections.

The suit, Zubik v. Burwell, marked the court’s second case on the birth control requirement and the fourth on the Affordable Care Act, which President Barack Obama signed into law six years ago to the day.

The court last reviewed the contraceptives requirement two years ago in the Hobby Lobby case, when five justices found the government couldn't force owners of closely-held companies to violate their religious beliefs by providing birth control coverage for employees. Now, the court is considering whether the coverage mandate, which comes with massive fines for noncompliance, violates the beliefs of institutions with religious ties.

Dozens of groups are challenging an accommodation created by the Obama administration that allows nonprofits with religious ties — such as the Catholic diocese of Washington, Geneva College and the Little Sisters of the Poor — to avoid directly providing birth control in their employee health plans. Instead, those groups document their opposition with the government or their insurer, which in turn provides birth control directly to the employees.

The groups argue even that act of notification using a government form makes them complicit in providing some types of contraception they oppose on religious grounds. They want no link — however tenuous — between them and the distribution of contraception that they say is akin to abortion.

“My clients do not object to objecting,” said attorney Paul Clement, who argued for the Little Sisters. “My clients would like to be a conscientious objector. The government is insisting that they be a conscientious collaborator.”

The question before the court is whether the coverage requirement imposes a substantial burden on the groups’ religious rights under the Religious Freedom Restoration Act, a 1993 law that was enacted with bipartisan support.

Solicitor General Don Verrilli said the Obama administration struck the right balance between respecting the beliefs of religious groups and public health. The administration argued that society as a whole is healthier and more prosperous when women are able to plan their pregnancies.

The religious freedom statute requires "a sensible balance” among groups with conflicting religious beliefs, Verrilli said. “The government has got to administer rules that are fair to everyone.”

In his questions, Roberts seemed to repeatedly dismiss the government’s interest in using the opt-out process to trigger contraceptive coverage through a third party. He said that the government was trying to force the nuns' health plans to provide a benefit the government wants but the religious order does not.

“They think that complicity is sinful," Roberts said. “It is the relationship between the insurer that the Little Sisters have hired ... that is being used by the government to provide these services.”

Both Roberts and Justice Samuel Alito also took shots at the Obamacare bureaucracy, ridiculing Verrilli’s suggestion that it would be burdensome for a woman to go on an insurance exchange website and sign up for a contraception-only policy if such an option were offered.

“Is it because these exchanges are so unworkable, even with a navigator?” Alito asked sarcastically.

“I’ve heard about how easy it is,” Roberts chimed in later.

Alito seemed to see no problem with a work-around in which the government helped women obtain contraceptive coverage without involvement by religious employers. “So, she’ll have two insurance cards instead of one,” he said.

The liberal justices likened the contraceptive coverage to other scenarios where Americans must acquiesce to things they don’t believe in, such as conscientious objectors who were imprisoned instead of going to war, Quakers who had to pay taxes to support a military or even people who shovel sidewalks in front of abortion clinics.

Justice Stephen Breyer said part of life in modern society is that a religious believer “does have to accept all kinds of things that are just terrible for him."

Obamacare already contains a wholesale exemption for churches and similar houses of worship. The religious hospitals, charities and other faith-based organizations say the government’s decision to allow churches not to comply undercuts the government’s rationale for requiring other institutions go through the opt-out process.

“If they’re willing to [exempt] all of those people, that really does question whether they have a compelling interest” in forcing religious institutions to opt out, said Noel Francisco, one of the lawyers for the challengers. He said the government has created “a massive exemption for both secular and religious reasons.”

Justice Elena Kagan said that every law has some exceptions and that using those to demand even more could cripple government. “Then, we might as well pack it all in,” she said. “There’s not a law in town that doesn’t have exemptions like that.”

Kagan also warned that if the challengers prevail, the message to Congress would be not to enact religious exemptions in the future. “Those are terrible incentives to give to a legislature, are they not?” she asked.

The Supreme Court ruled more two decades ago that the Constitution does not require the government to make exceptions to widely applicable rules like the contraception coverage mandate. That 1990 decision, written by the late Justice Antonin Scalia, prompted Congress to pass the religious freedom act by a huge majority three years later, guaranteeing more protection for religious liberty.

Even if the court agrees that the requirement burdens the religious groups, the government can still win this case if it proves that it has a strong need to ensure all women have access to birth control, regardless of their employers' views and that this is the least restrictive way to provide it.

In general, the religious groups don’t oppose all forms of contraception, such as the pill. But they oppose intrauterine devices and the so-called morning-after pill because they believe they are akin to abortion. The FDA says these forms of contraception are birth control, not abortion, but several justices said Wednesday they don't question the sincerity of the groups' beliefs.

The outcome of the case, which was subject to more than 90 minutes of oral argument on Wednesday, is almost certain to hinge on Kennedy.

Kennedy's comment suggesting that religious universities should not have a broad Obamacare exemption may reflect concern that it could lead to demands for exemptions from other mandates, such as non-discrimination edicts in federal law. That prospect evokes a contentious Supreme Court case from three decades ago, in which the justices ruled that that the IRS could strip Bob Jones University of its tax exemption over the school's policy against interracial dating and marriage, even though the school's prohibition was rooted in religious belief.

At the outset of his rebuttal, Clement picked up on Kennedy's comment about universities. Clement argued that it was the government's duty to defend why it had given churches a full exemption but forced religious groups including those who run universities to go through an opt-out process they find objectionable.

"I don't think it's the case that just because Congress exempts churches, that it has to exempt the universities. What it needs, though, is a rationale for drawing the line," Clement said.

In the Hobby Lobby ruling, Kennedy sided with the challengers. But he wrote in a solo concurrence that the closely-held companies should have an accommodation like the one the religious institutions have.

“There is an existing, recognized, workable and already-implemented framework to provide coverage,” Kennedy wrote then, referring to the accommodation for nonprofit religious institutions. “That accommodation equally furthers the government’s interest but does not impinge on the plaintiffs’ religious beliefs.” That has given government allies confidence that Kennedy will side with the Obama administration this time.

Also bolstering the government's case is the fact that the court essentially created the notification requirement in 2014, when it said that Wheaton College could get an emergency injunction to block the coverage mandate as long as it notified HHS of its religious objection.

“It’s hard to believe and it would actually be unacceptable for the Supreme Court to invalidate the very path they proposed as a solution just two years ago,” said Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center. “That decision would clearly land him on the side of upholding the accommodation. We’re confident of a 5-3 decision here.”

If Kennedy sides with the challengers, the court — down to eight members after the death of Scalia — could end up deadlocked at 4-4. In that situation, the lower court rulings would stand.

That scenario has its own problems: There were dozens of similar cases filed, with eight circuit courts ruling for the Obama administration and one for the challengers. That would mean the law would be applied unevenly across the country.

The court could also decide to hold the case for rehearing until there is a ninth justice. That scenario, some legal experts say, is more likely to avoid the confusion of conflicting circuit rulings.

Scalia’s unexpected death last month does seem to preclude the worst-case scenario for the government and supporters of the contraception coverage: that Kennedy could be persuaded to join with the court’s other GOP-appointed justices and form a majority rejecting the accommodation offered by the Obama administration.

