WASHINGTON, DC — Prior to Wednesday’s oral argument in Zubik v. Burwell, liberals had good reason to be optimistic that Obama administration regulations expanding women’s access to birth control would prevail in the Supreme Court. Most of the way through that argument, however, that optimism was shattered by the one justice on the Court whose vote was reasonably uncertain: Justice Anthony Kennedy. Though nothing is final until the Supreme Court releases its decision, the most likely outcome in Zubik is a 4-4 split — at least until someone is confirmed to fill the late Justice Antonin Scalia’s vacant seat.
The federal rule at stake in Zubik requires nearly all employers to include contraceptive coverage in employer-provided health plans. Employers who object to birth control on religious grounds, however, are exempt from this requirement. To invoke this exemption, they need to fill out a short two-page form or provide the equivalent information in another format. Once they do so, in most cases, the employer’s insurance company will work directly with the employer’s workers to provide them with a separate plan covering only contraception.
The plaintiffs in Zubik and a series of related cases object to this fill-out-the-form requirement. They claim that taking any action that sets in motion of chain of events that leads to someone getting birth control makes them complicit in a sin, and thus they should be excused even from the requirement to fill out a small amount of paperwork.
In support of this argument, they invoke the Religious Freedom Restoration Act, (RFRA) which has three relevant parts. First, RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion.” Such a burden is allowed, however, if the government does so “in furtherance of a compelling governmental interest” and it uses “the least restrictive means of furthering that compelling governmental interest.”
The Right Gets Its Mojo Back
In Burwell v. Hobby Lobby, the last major case brought by religious objectors to birth control, the Court’s five justice conservative majority effectively wrote the “substantially burden” requirement out of the law. As Justice Samuel Alito wrote for the Court in that case, the Hobby Lobby plaintiffs “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”
It quickly becomes clear during the Zubik argument, however, that the Court’s four justice liberal bloc wants to put the words “substantially burden” back into the law. Justice Sonia Sotomayor notes that, under the conservatives’ truncated reading of RFRA, it is unlikely that a plaintiff would ever fail to show a substantial burden because “we’re not asking you to do anything except identify yourself.” Justice Stephen Breyer even goes so far as to wax philosophic about how much easier life was in the few years before RFRA was enacted.
Kennedy, however, wants no part of this project to make “substantially burden” mean something again. “It seems to me that there is a substantial burden” in this case, Kennedy tells Solicitor General Don Verrilli in an uncharacteristically candid moment. About a minute later, Kennedy is even more candid, disclosing that he believes that this entire case comes down to whether the government could have used a less restrictive alternative (the third prong of RFRA) to provide birth control to women whose employers object to birth control.
For most of Verrilli’s time at the podium, however, Kennedy is sphinx-like, saying little and revealing little about whether he believes the government has made its case. Chief Justice John Roberts and Justice Alito spend this period taking shots at Verrilli. At a major argument over abortion earlier this month, the Court’s conservative wing appeared stilted and unsure how to seize the offensive with Scalia absent from the bench. Today, with Scalia’s seat literally absent from the Courtroom and just eight chairs facing the audience and the attorneys, it was clear that Roberts and Alito had their mojo back.
In their briefs, the religious objectors argue that requiring them to fill out a form in order to receive a contraceptive plan is not the “least restrictive means” of ensuring access to birth control. The government could have created a new birth control entitlement program funded by taxpayers (an alternative that Kennedy briefly appears skeptical of), or they could have offered birth control-only plans in the Affordable Care Act’s health care exchanges to women whose employers refuse to provide them with contraceptive coverage.
Alito focuses on the later of these two opinions, in a series of questions for Verrilli that can fairly be described as combative and nasty. At one point, Alito demands to know how the government can claim that Obamacare’s exchanges are “so unworkable” that they cannot provide an alternative for women that need birth control-only plans. It’s the sort of remark that seems more at home on Fox News than in the Supreme Court of the United States, and its delivered in a tone that seems to betray Alito’s bitterness over the fact that he has twice tried and failed to gut Obamacare by judicial decree.
In response, Verrilli argues that offering birth control-only coverage in the exchanges would not be a workable solution. For one thing, it’s not currently legal to sell such single-subject plans in the exchanges. For another, it’s far from clear that any private insurer would agree to offer such a plan. And even if they did, there’s no guarantee that a woman would be able to buy a plan that included the same doctors she relies upon for other medical care. This could lead to a world where a woman’s regular physician would be unable to prescribe contraception or even counsel the woman on many issues related to her reproductive health. And it would add an additional layer of complication that would discourage many women from seeking out contraceptive care.
Roberts, meanwhile, embraces the religious objectors’ argument that the government is “hijacking employers'” health plans via its fill-out-the-form regulation. This proves to be a very effective argument for Roberts, largely because it appears to sway Kennedy near the end of Verrilli’s time at the podium. In response to Verrilli’s attempt to explain some of the details of how the fill-out-the-form rules operate, Kennedy snaps back “that’s why it’s necessary to hijack the plans!”
In contentious cases, Kennedy often appears to play the role of Hamlet, asking questions of both sides and giving off an air of uncertainty about how he will ultimately vote. But when Kennedy shows real emotion in one of his questions, or when he adopts the loaded language of one of the parties, that’s normally a good sign that he’s made up his mind. When the votes are cast and the Court’s decision is released, it’s a good bet that Kennedy will vote against Team Birth Control.
In the short term, that could create a fair amount of uncertainty for women who work for multi-state employers. Ordinarily, when the Supreme Court splits 4-4, lower court orders stand. Currently most federal appeals courts agree with the government that its fill-out-the-form rules are lawful, but the Eighth Circuit, which oversees federal suits in Arkansas, Iowa, Minnesota, Missouri, Nebraska and the Dakotas, sided with religious objectors. Thus, if the Court ultimately hands down a 4-4 decision, a woman who moves from Texas (where the conservative Fifth Circuit upheld the fill-out-the-form rules) to Arkansas could lose her right to birth control coverage.
Worse, such a result could create a great deal of confusion for large employers that could potentially be subject to one court order in one state requiring them to fill out the form, and another court order in another state providing that they do not have to do so. Without a Supreme Court majority to resolve this conflict, it is not entirely clear what that employer should do.
Ultimately, however, it is likely that someone — whether it is Supreme Court nominee Merrick Garland or someone else — will be confirmed to fill Scalia’s seat. If that new justice is inclined to agree with the conservatives, that could lead to far more uncertainty about when our laws even apply. At one point during the oral argument, Justice Breyer rattled off a long list of difficult cases that could arise if the Zubik plaintiffs prevail. What of Quakers who refuse to let their taxes go to fund a war? Or a city employee who refuses to shovel the sidewalk in front of an abortion clinic for fear that it will make it easier for women to obtain abortions? Justice Elena Kagan asks an even more basic question: what if someone objects even to informing the government that they have an objection to following a law, yet demands the right to be exempt from it anyway?
In his final seconds at the podium, Verrilli concludes his argument with an appeal to these concerns. “A sensible balance” between the rights of religious objectors and a society’s need for self-governance “is essential in a pluralistic society like ours.”
After Wednesday’s argument, however, it appears that there are only four justices who share Verrilli’s concern about this case.