Linda Greenhouse, A Supreme Court Hijacking, The New York Times

There was lots of talk about hijacking the other day at the Supreme Court — not in a criminal case, but in the argument on how far the government must go to shield nonprofit religious organizations from the Affordable Care Act’s requirement to include birth control in employer health care plans.


tory-body-text story-content” data-para-count=”407″ data-total-count=”707″>If the government has its way, it will “hijack our health plans and provide the coverage against our will,” Paul D. Clement, arguing for one group of religious nonprofits, warned the eight justices. His co-counsel, Noel Francisco, representing a second group of religious plaintiffs, added: “They’re seizing control of our plans, the plans that we are required to provide under threat of penalty.”

tory-body-text story-content” data-para-count=”278″ data-total-count=”985″>Sympathetic justices were quick to pile on. “The petitioner has used the phrase ‘hijacking,’ and it seems to me that that’s an accurate description of what the government wants to do,” Chief Justice John G. Roberts Jr. lectured Solicitor General Donald B. Verrilli Jr.

tory-body-text story-content” data-para-count=”702″ data-total-count=”1687″>The solicitor general had the facts on his side on how the opt-out that the Obama administration is offering would actually work: Religious nonprofits could completely divorce themselves from covering birth control after notifying the government of their religion-based objection. But the conservative justices never stopped their rhetorical assault long enough to listen. When Mr. Verrilli tried to explain why it’s necessary to include contraception coverage in employer health plans, rather than in a nonexistent, stand-alone birth-control policy that women would have to shop for separately, Justice Anthony M. Kennedy interrupted him with “that’s why it’s necessary to hijack the plans!”

tory-body-text story-content” data-para-count=”324″ data-total-count=”2011″>Remember back four years ago to the first Affordable Care Act case, when “broccoli” dominated right-wing talk radio — as in “if the government can force you to buy health insurance, it can force you to eat broccoli” — and was adopted by the conservative justices? Hijacking, evidently, is this year’s broccoli.

tory-continues-1″ class=”story-body-text story-content” data-para-count=”520″ data-total-count=”2531″>There is in fact no hijacking going on — not of anyone’s insurance plan, anyway. As the government’s brief and Mr. Verrilli’s argument made perfectly clear, once the organization notifies the government of its religious objection to covering birth control, the coverage obligation passes to the organization’s insurance company without any cost to or further involvement by the employer. “Employers are not to bear any financial burden for the contraceptive coverage,” the solicitor general told the court.

tory-body-text story-content” data-para-count=”377″ data-total-count=”2908″>But the religious nonprofits nonetheless insist that even the requirement to notify the government makes them complicit in making birth control available to their employees. What these organizations — colleges, charities and nursing homes that employ and serve people of all faiths — want is the complete exemption that the government has made available to actual churches.

tory-body-text story-content” data-para-count=”286″ data-total-count=”3194″>“Is there any accommodation that would be acceptable?” Justice Elena Kagan asked Mr. Francisco. “Is there any kind of notification that would be acceptable” if the result was that female employees would get contraception coverage “seamlessly through an employer-based plan?”

tory-body-text story-content” data-para-count=”528″ data-total-count=”3722″>The lawyer’s answer, taking up several pages of the argument transcript, was far from direct, but his bottom line was no. He offered one exception: “If there was an uber-insurance policy where Aetna was the company that the government picked to provide contraceptive coverage to all women in this country, and we happened to use Aetna, I think we’d probably be fine.” (To be clear, he was offering Aetna as an example of an independent player in the insurance market, not suggesting that it was the only acceptable one.)

tory-body-text story-content” data-para-count=”578″ data-total-count=”4300″>I’ll give Mr. Francisco credit for one thing: He actually used the word “women” in open court. He and Mr. Clement otherwise appeared determined to avoid acknowledging that the case had anything to do with women other than nuns — namely, the Little Sisters of the Poor, Mr. Clement’s client, a religious order that runs a nationwide network of nursing homes and that advertises itself as an equal-opportunity employer. (Mr. Clement resorted to a creative euphemism for a female employee who might avail herself of insurance-provided birth control: “the end-user.” )

tory-body-text story-content” data-para-count=”767″ data-total-count=”5067″>It took Justice Sonia Sotomayor, the only woman among the five Catholics on the court and the only one among them who doesn’t regularly attend Mass, to bring this case down to earth, slyly suggesting that the plaintiffs didn’t trust their female employees to refrain from using birth control. “Why don’t we assume that if the majority are part of the religion, that they are not going to buy contraceptives?” she asked Mr. Francisco. “That’s their religious tenet. And so, why are we worried about this case at all?” And she answered her own question: “We are worried because there are some women who don’t adhere to that particular religious tenet, and who have — we perceive the government has determined — a real need for contraceptives.”

tory-body-text story-content” data-para-count=”376″ data-total-count=”5443″>At its core, this case, Zubik v. Burwell, is a case about religion’s role in civil society. The plaintiffs are betting on an expansive interpretation of a federal statute, the Religious Freedom Restoration Act. And here’s where hijacking comes in. What’s being hijacked is not the religious objectors’ insurance plans, but the Religious Freedom Restoration Act itself.

tory-body-text story-content” data-para-count=”331″ data-total-count=”5774″>This 1993 law, well-intentioned but ill-conceived, provides that a law or government policy that places a substantial burden on a person’s exercise of religion can be justified only if it serves a “compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”

tory-continues-2″ class=”story-body-text story-content” data-para-count=”616″ data-total-count=”6390″>Both the “compelling interest” and “least restrictive means” tests are very high standards for the government to meet. But as long as the challenged policy doesn’t impose a substantial burden, the case never gets to those tests. So the threshold question in the Zubik case is whether the religious nonprofits are substantially burdened by the requirement that they inform the government of their objection to covering contraception. Their claim is that as a matter of religious doctrine, informing the government is the first link in a chain of events that makes them complicit in the sin of contraception.

tory-body-text story-content” data-para-count=”115″ data-total-count=”6505″>“Do you question their belief that they’re complicit in the moral wrong?” Justice Kennedy asked Mr. Verrilli.

tory-body-text story-content” data-para-count=”51″ data-total-count=”6556″>“No, we do not,” the solicitor general replied.

tory-body-text story-content” data-para-count=”89″ data-total-count=”6645″>“Well, then it seems to me that that’s a substantial burden,” Justice Kennedy said.

tory-body-text story-content” data-para-count=”753″ data-total-count=”7398″>Really? Any belief counts, as long as it’s sincere? Any belief, no matter the consequences to third parties who don’t share the belief? Given judges’ extreme diffidence about questioning the basis for any religious belief, that’s a not-implausible reading of a statute that only the much-missed Justice John Paul Stevens had the nerve to call unconstitutional. In aconcurring opinion 19 years ago, Justice Stevens said that because the Religious Freedom Restoration Act gave churches “a legal weapon that no atheist or agnostic can obtain,” the law amounted to an unconstitutional establishment of religion. “This governmental preference for religion, as opposed to irreligion,” he wrote then, “is forbidden by the First Amendment.”

tory-body-text story-content” data-para-count=”839″ data-total-count=”8237″>That case, City of Boerne v. Flores, involved a zoning dispute: whether the law overrode a local zoning ordinance, entitling a church to build in a location that was otherwise closed to new construction. For all his skepticism, even Justice Stevens probably wouldn’t have imagined that the Religious Freedom Restoration Act would be invoked to excuse a religious organization from the mere obligation to tell the government that, for religious reasons, it couldn’t comply with an otherwise applicable legal requirement. The law, signed by President Bill Clinton, passed both houses of Congress overwhelmingly in a rare show of feel-good bipartisan comity. I’d like to think its reception wouldn’t have been so positive had people imagined how potent a weapon it would become in the hands of a politically empowered religious right.

Even so, this case is far from over. Many people came away from the argument last week assuming that the result would be a 4-to-4 tie; with that outcome, the decisions of the four federal appeals courts under review, all of which ruled in the government’s favor, would be affirmed without binding other courts. Given the tenor of the argument, that was a fair prediction.

But it was evident this week that something else was going on behind the scenes at the court. The court on Tuesday issued an unusual order requesting further briefs by both sides on whether the government’s accommodation for the religious nonprofits might be reformulated. Under the hypothetical plan explained at length in the two-page order, the religious nonprofits would have no obligation to inform anyone of their decision to provide health insurance that omitted contraception coverage. Their insurance companies would be left to decipher the situation and to then meet their own obligation to provide the coverage directly.

The order bore no one’s name but, in my view, Justice Kennedy’s hand. It wouldn’t be surprising if he is struggling to devise a compromise that would avoid a tie vote of the sort that resolved a vitally important labor case this week. There were hints during the argument that Justice Kennedy was not fully on board with his conservative colleagues. Both Chief Justice Roberts and Justice Samuel A. Alito Jr. seemed to assume, against all evidence, that a new form of contraception-only insurance could magically come into existence and could adequately meet the needs of the women who work for the objecting employers.

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Justice Kennedy toyed with that idea, too. “Why can’t they just get it through another plan?” he asked Mr. Verrilli. But perhaps he was persuaded by the government lawyer’s answer that such a plan, even if one could be devised, would be nothing more than a second-class arrangement that would leave women having to find not only separate insurance but also separate doctors for their contraceptive care.

“The whole point of this provision is that you get this care from your regular doctor as part of your regular health care without any barriers,” the solicitor general said.

In any event, Justice Kennedy made clear several times during the argument that his real concern was whether the opt-out-with-notice system the administration was offering was the “least restrictive means” of achieving the government’s purpose. Would opt-out-without-notice serve just as well? If women would still get their coverage, probably it would. Will the religious interests resist taking “yes” for an answer, as they have from the beginning of this litigation?


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