The second case to thrust the supreme court into a showdown over religious beliefs, contraception and Barack Obama’s signature healthcare law unfolded on Wednesday, in a tense 90 minutes that saw clashes along familiar ideological lines.

The case, Zubik v Burwell, pitted the government against 29 faith-based not-for-profit organizations who say its rules for groups with religious objections to covering female employees’ contraception are morally compromising.

But the two sides have cast the trial as something greater: a high-stakes fight for women’s equality, or a profound battle over basic protections for religious freedom.

The justices still number eight after the death of Antonin Scalia. In his absence, the four conservatives who remain lobbed a series of skeptical questions at the government.

Chief Justice John Roberts and Justice Samuel Alito both posed questions implying that relying on the not-for-profit organizations’ healthcare provider in any way to guarantee contraceptive coverage constitutes government “hijacking”.

The case marks the fourth time the high court has heard a challenge to the Affordable Care Act, President Obama’s signature legislative achievement.



And it is the second challenge to take aim at the contraceptive mandate – a requirement that employers offering healthcare plans cover most types of birth control for their female workers. Not two years ago, in Burwell v Hobby Lobby, a deeply divided court ruled that for-profit companies which are “closely held” could claim religious objections in order to opt out of the mandate.

But the groups appearing before the court on Wednesday already have the ability to opt out of providing contraception coverage – thanks to a health department accommodation for religious not-for-profit organizations announced more than three years ago.

Wednesday’s lawsuit brings the claim that their beliefs are violated by the very accommodation that exempts them from the mandate: a two-page government form.

“That’s all?” Justice Ruth Bader Ginsburg asked on Wednesday.

The form is what notifies the government that a not-for-profit organization is refusing to provide contraceptive coverage on its own. To the not-for-profit organizations, the mere act signing of the form – which alerts an insurance plan administrator of the need to make separate arrangements for coverage – is tantamount to continuing to provide the coverage themselves. The groups’ opposition to covering female contraceptives is based on a belief, which is on dubious scientific grounds, that IUDs and morning-after drugs cause abortions.

“Before trivializing petitioners’ objections,” the brief continues, “it should be remembered that ‘Thomas More went to the scaffold rather than sign a little paper for the King’.”

But the government says that thousands of women’s healthcare would be at risk if the not-for-profit organizations didn’t have to notify the government that they no longer covered contraceptives.

The 29 groups represented on Wednesday include Bishop David Zubik of Pittsburgh, four religious colleges, the Catholic archdiocese of Washington DC, and the Little Sisters of the Poor, a group of nuns which controls a string of retirement homes. Together, they employ 5,300 full-time workers and insure more than 12,000 college students.

Facebook Twitter Pinterest Supporters of contraception rally before Zubik v Burwell is heard by the supreme court. Photograph: Joshua Roberts/Reuters

Out of all religious not-for-profit organizations in the country employing at least 1,000 workers, 10% used the accommodation to oppose contraceptive coverage in 2015.

The government disputes the idea that the accommodation is onerous, noting that the form severs any responsibility the groups have to further involvement with contraceptives.

And its supporters view the case as another barely disguised attempt to limit women’s reproductive options.

“A personal religious objection is not a license to disregard the law … [or] a justification for discrimination in the marketplace,” the American Civil Liberties Union and the NAACP wrote in a brief submitted to the court. “Contraception is not simply a pill or a device; it is a tool, like education, essential to women’s equality.”

On Wednesday, the court’s liberals seemed to agree that the form is not a burden. Several noted that pacifists who don’t wish to register as conscientious objectors – fearing the government would send someone in their place – are thrown in prison.

The three women justices asked questions probing whether the plaintiffs were indeed seeking a way to obliterate the contraceptive mandate for religious not-for-profit organizations, or simply concerned about their own complicity.

“Is there any accommodation that the government could offer that would in fact result in women employees of your clients, or students of your clients getting contraceptive coverage … that would be acceptable?” asked Justice Elena Kagan.

“As far as I understand, you’re saying no,” Justice Ruth Bader Ginsburg said.

“If they’re seizing control of our plans, the plans that we are required to provide under threat of penalty, and using those plans as the vehicle to delivering the objectionable coverage to our employees … then I could certainly see why many clients would view that as a substantial burden on their religious beliefs,” said Noel Francisco, an attorney representing several of the plaintiffs.



Wednesday’s challenge comes under the Religious Restoration and Freedom Act, a 1993 act of Congress which sets a high bar for laws that “substantially burden” religious practice. Under the act, such a law must further a “compelling government interest” by using the “least restrictive means” possible.

To date, only one appellate court has ruled for the not-for-profit organizations, a three-judge panel drawn from the eighth circuit in Missouri. Seven other appellate courts have rejected the argument that the accommodation constitutes a substantial burden on the groups’ religious practices. Supporters of the government’s position hope this is a sign that a majority of the eight justices will follow suit. If the justices split, the appellate court decisions will stand and the state of many women’s contraceptive coverage will depend on geography.

Supporters of the government’s position note that the two-page document was actually the accommodation to religious groups in the Hobby Lobby decision. “The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero,” Justice Samuel Alito wrote for the majority.

Alito’s opinion did not take a position on the legality of the accommodation. But in a concurring opinion, Justice Anthony Kennedy called the workaround “an existing, recognized, workable, and already-implemented framework to provide coverage” that “equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs”. It is Kennedy’s vote observers believe the government needs for a majority in its favor.

But there were moments in the arguments when Kennedy, Roberts and Alito seemed to see the question of burden as settled simply because the not-for-profit organizations have raised objections to the accommodation.

“Do you question their belief that they’re complicit in the moral wrong?” Kennedy asked Donald Verrilli, the solicitor general and counsel for the government in this case.

“No,” Verrilli replied.

“Well, then it seems to me that’s a substantial burden,” Kennedy said.

The conservative justices also pressed Verrilli to explain his argument given that the government already exempts broad categories of employers from the contraceptive mandate. A grandfathered clause shields a large, but shrinking, number of health plans from the mandate. And houses of worship are exempt altogether.

Verrilli, and the liberal justices through their questions, answered that Congress has a long history of treating churches, synagogues and mosques, as special. Supporters of the government have noted that churches are far more likely than not-for-profit organizations to employ people who share the institution’s creed. Catholic hospitals may be staffed with hundreds of employees of different faiths.

But the not-for-profit organizations say that the exemptions for the houses of worship undermine the government’s position.

“The core of the case is a profoundly unnecessary interference with the Little Sisters’ ability to live their lives according to their religion,” Mark Rienzi, an attorney with the Becket Fund for Religious Liberty who is representing the Little Sisters of the Poor, said earlier in the week. “This ought to be a really easy question. The idea that the US government can’t figure out a way to get these contraceptives to employees who might want it without involving the Little Sisters, if it wasn’t so surreal, would be a funny idea.”

“At stake is whether [the Religious Freedom Restoration Act] will remain an effective bulwark of religious freedom,” the Mormon church the National Association of Evangelicals wrote in a brief supporting the plaintiffs.

Other briefs called the the inconvenience to women “minor” and “mild”, and laid out alternative ways that women working for religious not-for-profit organizations could gain contraceptive coverage.

Roberts grappled with the burden for women in a back-and-forth with Verrilli, saying: “So it comes down to a question of who has to do the paperwork” – the not-for-profit organizations or the employees.

Verrilli replied that the not-for-profit organizations’ suggested alternatives were inadequate. And many women’s groups who work on reproductive healthcare access have made this same argument. Some of the suggestions, they say, such as the proposal that women buy “separate, contraceptive-only health plans” do not exist. Others – such as giving contraceptive makers tax credits so that they will provide the drugs and devices for free – are purely theoretical and politically unfeasible.

What the not-for-profit organizations have proposed, they say, is either impossible or resembling of the very patchwork system that existed before the Affordable Care Act’s contraceptive mandate. “None of the alternatives would accomplish what the contraception regulations guarantee: seamless access to the full range of contraceptive methods,” reads a brief by the National Women’s Law Center.

Roberts appeared to acknowledge the difficulty of relying on alternatives to the employer health plans. In this case, he noted, the government’s interest is not just ensuring that women can access contraception, but ensuring that they can access it “seamlessly”.

But at the close of the case, Paul Clement, the attorney representing the Little Sisters of the Poor, argued that the cost to his clients’ conscience was too steep.

“My clients would love to be conscientious objectors,” he said. “But the government insists that they be a conscientious collaborator. There is no such thing.”