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Supporters of contraception rally before the hearing of the Obamacare contraception case by the US Supreme Court in Washington. Photo: Reuters
Supporters of contraception rally before the hearing of the Obamacare contraception case by the US Supreme Court in Washington. Photo: Reuters

US top court faces 4-4 split in Obamacare contraception case

An evenly split ruling would leave in place lower-court rulings rejecting challenges brought by the Christian organizations for religious reasons

Washington: The US Supreme Court on Wednesday headed toward a possible 4-4 split over a legal challenge by Christian non-profit employers who object to providing workers insurance covering birth control as required by President Barack Obama’s healthcare law.

An evenly split ruling, with the court’s four liberals siding with the Obama administration against the four conservative justices, would leave in place lower-court rulings rejecting challenges brought by the Christian organizations that opposed providing contraception coverage for religious reasons.

Justice Anthony Kennedy, who often casts the deciding vote in close cases, appeared more aligned with the court’s three other conservatives in favouring the challengers, which primarily were Roman Catholic including the archdiocese of Washington.

Only eight justices heard the latest high-profile conservative challenge to the law, considered Obama’s signature legislative achievement, following the 13 February death of conservative Justice Antonin Scalia.

The court heard 90 minutes of arguments in the case on the sixth anniversary of Obama signing the Affordable Care Act, known as Obamacare, into law. The law has expanded medical insurance coverage to millions of previously uninsured Americans even as conservative critics describe it as government overreach and congressional Republicans have mounted repeated failed efforts to repeal it.

Conservatives have mounted numerous legal challenges to the law, with the Supreme Court in 2012 and 2015 issuing high-profile rulings leaving it intact.

The court heard arguments on seven related cases focusing on whether non-profit entities that oppose the requirement can object under a 1993 US law called the federal Religious Freedom Restoration Act to a compromise measure offered by the government.

A 4-4 split would set no national legal precedent against such claims, and would allow them in parts of the country where lower courts permit such lawsuits to proceed.

The liberal justices raised concerns about allowing the non-profit religious organizations the same exemptions that churches get. Justice Elena Kagan said Congress would then stop giving churches exemptions when it passes laws, which would be a “mortal danger to churches."

Another liberal, Justice Sonia Sotomayor, echoed that sentiment when referring to the dangers of widespread exemptions from government programs.

“How will you ever have a government that functions?" Sotomayor asked.

Liberal Justice Stephen Breyer noted that other religious groups regularly have contended with government decisions they opposed. He cited Quakers, who oppose war but are still required to pay taxes that fund military spending, as an example.

Conservative Chief Justice John Roberts said the challengers’ contention that the government is seeking to “hijack" their health insurance plans in order to provide contraception coverage appeared to be an “accurate description."

He and fellow conservative Justice Samuel Alito raised the question of whether there are other ways the coverage could be provided.

Opting out

The Christian groups object to a compromise first offered by the Obama administration in 2013. It allows groups opposed to providing insurance covering birth control to comply with the law without actually paying for the required coverage.

Groups can certify they are opting out of the requirement by signing a form and submitting it to the government. The government then asks insurers to pick up the tab for the contraception.

The challengers contend the accommodation violates their religious rights by forcing them to authorize the coverage for their employees even if they are not paying for it.

Based on Kennedy’s previous approach, one question going into the hearing was whether he would be more sympathetic to the government than he was in a 2014 case concerning the same contraception requirement.

Kennedy was in the majority when the court ruled 5-4 that family-owned companies run on religious principles, including craft retailer Hobby Lobby Stores Inc., could object to the provision for religious reasons.

Kennedy wrote a concurring opinion then saying an accommodation like the one at issue on Wednesday could be acceptable. Nothing he said during the oral argument indicated he thinks the accommodation now before the court passes legal muster.

The religious freedom law states that objectors have a case if they can show that government action imposes a substantial burden on their religious rights. Kennedy strongly suggested he believes the burden was met, meaning the only remaining question would be whether the government has a compelling interest in providing contraception coverage and if the accommodation was the least restrictive means to reach that goal.

The case represents an uphill battle for the challengers, who lost all seven cases now before the Supreme Court in lower courts.

A Colorado-based order of Roman Catholic nuns called the Little Sisters of the Poor that runs care homes for the elderly was among the employers challenging the requirement.

Among the others were: Bishop David Zubik and the Roman Catholic Diocese of Pittsburgh; the Roman Catholic archdiocese of Washington, DC; Priests for Life; and East Texas Baptist University.

A ruling is due by the end of June. Reuters

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