Clement wasn’t claiming that the form requirement would one day lead to Title X tyranny; he was arguing that they are exactly the same thing. “[J]ust because this is more intangible, I don't think the principle is any different,” he said. The moment was beyond surreal; it was Palinesque.

Based on the strength of comments made from the bench, the most likely outcome is a 4-4 decision—a nightmare result that means the Supreme Court will have to revisit the issue sometime soon. (An evenly divided Court means that the requirement will remain in place everywhere but the Eight Circuit.) And the stakes in Merrick Garland’s nomination, and in the presidential election, will be dramatically underscored.

Under the ACA, every new health-insurance policy is required to cover basic contraceptive services for female policyholders at no additional cost. Men and women pay the same premium, and women are able to receive contraception from their doctors precisely the same way any other patient receives medical services. However, “houses of worship”—that is, religious nonprofit organizations whose sole function is a religious one—are entirely exempt. Houses of worship need not provide contraceptive coverage to their employees at all.

There is, however, a huge universe of religious nonprofits that are not houses of worship—hospitals, universities, social-service agencies, etc. And the religious sponsors of many of these nonprofits also have objections to some or all forms of contraception.

A central tenet of the ACA, however, is that a full range of “preventive-care” services must be available to the insured if at all possible—and contraception, which demonstrably leads over time to better health outcomes for women who use it, must be among those services. They are to be provided “seamlessly”—meaning that they are to be covered by the same policy as the main one, at no additional cost, and with no difference in the delivery and coverage.

When the Department of Health and Human Services implemented the ACA’s employer-coverage provision, then, it tried to pursue that objective by allowing religious nonprofits to disassociate themselves from contraceptive coverage without blocking it or removing it from employee plans. Under HHS regulations, religious nonprofits must notify the government of their objection to paying for or providing contraceptive coverage. Once the government is notified, it in turn notifies the employer’s insurance company or plan administrator. The company or administrator—instead of the religious nonprofit—then must provide the coverage to female employees at no cost to the employees.

What the houses of worship get is an “exemption.” The religious nonprofits, on the other hand, get an “accommodation”—that is, a compromise—a familiar technique in many religious-freedom cases, by which the government observes the concerns of religious people and organizations while at the same time achieving its goal. It’s nothing new: In U.S. history, a conscientious objector to war has not needed to bear arms; but he or she has had to certify an objection and then do “alternative service.”