In court over 90 minutes of arguments, the justices appeared closely divided after debating the law's requirement that group health plans provide a full range of contraceptive coverage to women at no cost and a claim made by the lawyers for nonprofit religious groups that the requirement violates a federal law meant to protect religious freedom.
Lawyers for the nuns as well as other nonprofit religiously affiliated groups told the justices that the so-called contraceptive mandate forces them to either violate their religious beliefs by providing "abortifacients and contraceptives" or pay ruinous fines. Although the Obama administration has offered them an accommodation meant to respect their religious objections, the groups said it is not good enough because it still makes them complicit in providing the coverage. They are seeking an exemption from the mandate similar to what has been provided to houses of worship such as churches.
Liberals on the bench suggested that the government had reached a proper balance in the accommodation between respecting the rights of female employees to full coverage and the religious liberty concerns of the groups.
Justice Ruth Bader Ginsburg pointed out that under the accommodation, it is the insurer or a third party who have an "independent obligation" to provide the coverage which exempts absolves the objecting groups from having to do so. Ginsburg said that "no one doubts" the sincerity of the religious beliefs of the groups but that "there has to be an accommodation, and that's what the government tried to do."
Justice Sonia Sotomayor said that she was worried "because there are some women who don't adhere" to the religious tenet of their employers and "have a real need for contraceptives."
Justice Elena Kagan also supported the government's decision not to offer the groups the same full exemption that it offered houses of worship. "Churches are special" she said. Justice Anthony Kennedy, whose vote could be key to deciding the case, seemed to agree with Kagan that some of the religiously-affiliated universities involved in the case should not be treated the same way as churches.
"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," Kennedy said. "I just find that very difficult to write."
But when Solicitor General Donald B. Verrilli stood up to defend the accommodation, Kennedy asked him whether he would concede that the accommodation could be a substantial burden on the groups. Both Kennedy and Chief Justice John Roberts wondered if the government might be "hijacking" the groups' plans.
Roberts said that the government wants "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." He said that the groups don't object to the fact that people who work for them will have contraceptive services provided, they only object to having to provide the coverage themselves.
"They think that complicity is sinful," he said.
He also questioned why the groups wouldn't be eligible for an accommodation that had been made available not only to churches, but for some grandfathered plans as well.
"If you have a lot of exemptions it undermines your argument that this is such a compelling interest," Roberts said to Verrilli.
A decision is expected by July.
Possibility of 4-4 tie
This is the fourth time the Supreme Court has heard a challenge to Obamacare, and Wednesday's case is the second one to target the mandate. A ruling in favor of the nuns would not threaten the balance of the entire law, but their lawyers and supporters hope it will bolster their religious liberty concerns. The challenge actually consists of seven consolidated cases brought by the groups who lost in the lower courts.
The oral arguments were the first related to Obamacare since the sudden death last month of Justice Antonin Scalia, who voted against the Obama administration and the Affordable Care Act in the three previous cases. The fact that only eight justices heard the case raises the possibility that the justices might end up equally divided, which would mean the court would simply affirm the lower court rulings at hand but set no national precedent. So far the government has prevailed in eight appeals courts across the country, but lost in the Eighth Circuit Court of Appeals.
In 2014, a divided 5-4 court ruled that Hobby Lobby, a closely held for profit company, did not have to provide contraceptive coverage that violated the religious beliefs of the owners.
Justice Kennedy joined the majority in that case and suggested the government could provide Hobby Lobby with an accommodation similar to the one at issue in Wednesday's case.
"Justice Kennedy was more skeptical of the accommodation today than he appeared to be in his concurring opinion in Hobby Lobby," said Gregory Lipper of Americans United for Separation of Church and State, which wrote a brief in support of the government. "But I wouldn't write off his vote quite yet -- he also seemed worried by the breadth of the challengers' argument, and he didn't make clear whether he thinks that the government has other ways to ensure that women get effective access to contraception."
If they are split, the justices could also decide to order that the case be argued again next term with the hope that by then Scalia's seat will be filled.
President Barack Obama has nominated Judge Merrick Garland to the bench, but Senate Republicans say they have no interest in holding hearings or voting on Garland before the presidential election.
Carrie Severino, a former clerk to Justice Clarence Thomas and chief counsel of the Judicial Crisis Network, tied Wednesday's arguments to the fight over replacing Scalia.
"As we saw today, the Supreme Court is only one vote away from a five-vote liberal majority that would undermine religious freedom," Severino said, adding that she believes "the more likely outcome" will be the court holding over the case until the seat is filled.
What does the law require?
In court papers, Verrilli argues that when Congress passed the law, it determined that preventive services for women were "critical" to improving public health. As such, the Department of Health and Human Services determined that group health plans provide a full range of contraceptive coverage at no cost.
The law exempts houses of worship from the mandate, but only offers an accommodation to non-profit groups who raised religious objections. Under the accommodation, a religious non-profit must first notify the group that issues its health plan, or HHS, that it has a religious objection. After the notification, either the insurance plan or a third party administrator becomes responsible for providing the birth control coverage directly.
"The accommodation made available under the Affordable Care Act respects religious liberty by allowing objecting employers to opt out of the generally applicable requirement to provide contraceptive coverage," Verrilli wrote. He said the accommodation also respects the "rights, dignity and autonomy of female employees" by providing "full and equal" health coverage.
But the groups say the accommodation is not good enough and would force them to facilitate and encourage wrongdoing.
They say the government is violating the Religious Freedom Restoration Act, a 1993 law that prohibits the government from imposing a substantial burden on religious exercise unless doing so is the least restrictive means of furthering a compelling government interest.
In briefs, lawyers say they want an exemption from the law similar to what is already being offered to the houses of worship, some small businesses and grandfathered plans.
"Truly exempt organizations do not need to comply with the mandate at all," argues Paul Clement, a lawyer for the nuns, in court papers. "They need not execute or deliver paperwork empowering anyone to use their plan infrastructure to provide contraceptive coverage, nor even notify the government of their desire for an exemption," he said.
In the courtroom, there were about 10 nuns sitting in the audience and a couple of Dominican Friars. Jane Roberts, the wife of Chief Justice John Roberts also sat in the front rows.
Outside of court groups supporting the administration said the law protects affordable access to birth control.
In a statement Planned Parenthood's Cecile Richard said: "Like we did before the law was signed six years ago, Planned Parenthood will keep fighting for the right to birth control, no matter who your boss is."
Opponents -- including some nuns -- demonstrated holding sings that read: "HHS mandate: I'll have nun of it."
Last year, when Pope Francis visited Washington, he took time out of his schedule to meet with the nuns. A Vatican spokesman said the visit was meant as a "sign of support."
Alito, Roberts swipe at ACA
Wednesday marks the sixth anniversary of the Affordable Care Act, and Alito -- who has never been a fan of Obamacare -- took a swipe at the law and the exchanges set up to provide health insurance.
The larger point he was making was that there were other ways to accommodate the religious liberty concerns of religiously affiliated non profits then to require their insurers to provide the coverage.
"Suppose that it were possible for a woman who does not get contraceptive coverage ...under a plan offered by a religious non profit.. to obtain a "contraceptive- only policy" free of charge on one of the Exchanges?" Alito suggested.
Verrilli didn't think that was a less restrictive alternative.
Alito pushed on: "What type of a burden does that impose?" he asked. "Is it because these Exchanges are so unworkable, even with the help of a navigator, that a woman who wants to get free contraceptive coverage simply has to sign up for that on one of the Exchanges?"
Later in the argument Roberts also launched an ever so subtle dig. He went back at the government for saying the exchanges wouldn't be a viable alternative.
"You said, yes, it is a hassle to go to the Exchange, although it's -- you know, I've heard about how easy it is," Roberts said.