By Marcia Coyle, From The National Law Journal

The U.S. Supreme Court on Wednesday appeared evenly divided over religious nonprofits’ claim that they are entitled to an outright exemption from providing contraceptive health insurance to their female employees under the Affordable Care Act.

Only Justice Anthony Kennedy may hold the key to the success of the Obama administration’s counterclaim that the government has provided a legally sufficient accommodation of the nonprofits’ religious objections.

For most of the 90 minutes of arguments, the justices’ ideological breakdown was on display in their questioning. Kennedy’s comments offered support at times to both sides.

The vacancy created by the death of Justice Antonin Scalia opened the potential for a 4-4 split in the outcome of the case, which was argued on the sixth anniversary of the Affordable Care Act.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan led skeptical questioning of the nonprofits’ lawyers, Paul Clement of Bancroft and Jones Day’s Noel Francisco. Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. challenged the administration’s top lawyer before the court, Solicitor General Donald Verrilli Jr.

“We have a very strong tradition when it comes to religious exercise,” Kagan told Francisco. “Churches are special. If you’re saying that whenever the government gives an exemption to a church, it has to open it up [to all religious-related groups], then there is no exemption at all.”

Roberts told Verrilli: ” ‘Hijacking’ [of the nonprofits’ insurance plans] is an accurate description of what the government wants to do” in providing the disputed contraceptive coverage.

The justices heard arguments in seven cases from four federal courts of appeals that were brought by religious nonprofit schools, colleges, hospitals, charities and Roman Catholic clergy. The four appellate courts and three additional ones all ruled for the government. Only one appellate court thus far has accepted their claim—the U.S. Court of Appeals for the Eighth Circuit.

In the consolidated cases known as Zubik v. Burwell, the religious nonprofits contend that the government’s method of accommodating their objections to the coverage substantially burdens their religion in violation of the Religious Freedom Restoration Act of 1993. That accommodation, they say, makes them complicit in providing coverage that, they contend, includes contraceptives that cause abortion.

Under the religious-freedom law, the government is prohibited from imposing a substantial burden on a person’s exercise of religion unless it is the least restrictive means of furthering a compelling government interest.

The federal health care regulations require health insurance plans to provide free contraceptive coverage as part of a package of preventive care coverage. Contraceptive coverage includes 20 Food and Drug Administration-approved contraceptive methods: drugs and devices that operate to prevent fertilization of an egg, and four drugs and devices—two types of intrauterine devices and the drugs commonly known as Plan B and Ella—that can prevent implantation of a fertilized egg.

The regulations exempt churches and “houses of worship” that object on religious grounds to providing the coverage and also exempt certain other categories of employers. About 25 percent of insurance plans were exempt in 2015.

In response to objections by religious-affiliated employers, the government provided an “opt out” or accommodation of the required coverage. Under the accommodation, those employers may submit a letter to the Department of Health and Human Services stating their objections and providing basic information about the type of insurance plan it offers and contact information for the insurer or plan administrator.

The law of exceptions

The nonprofits, Clement told the justices, do not “object to objecting.” The problem, he argued, is that the notice to the government requires the nonprofits to provide the name of their insurers or third-party administrators so that the government can use their plans to provide contraceptive coverage. The form or notice, he said, “becomes a plan instrument.”

If the only action involved were third-party action, Clement added, “that’s not a substantial burden [on religion], but the government requires more.”

Francisco of Jones Day stressed that the government has granted exemptions to many other parties and those exemptions undercut the government’s claim that it has a compelling interest in providing contraceptive coverage.

However, Kagan told him, “It seems the most important laws often have exceptions, often have grandfathering rules. There’s not a law in town that doesn’t have exceptions.”

IMAGE: Protesters rally on March 23, 2016, in support of the Affordable Care Act’s contraceptive mandate. Photo: Diego M. Radzinschi/ The National Law Journal

For more on this story go to: http://www.nationallawjournal.com/id=1202752911613/Justices-Show-Sharp-Divide-in-Religious-Challenge-to-Contraceptives#ixzz43maCHuJv