Supreme Court Justices: Will the Government ‘Hijack’ Little Sisters’ Health Plan?

After oral arguments March 23 in Zubik v. Burwell, analysts can foresee 4-4 deadlock.

Religious sisters show their support of the Little Sisters of the Poor outside the Supreme Court where oral arguments were heard on March 23 in the Zubik v. Burwell case against the HHS mandate.
Religious sisters show their support of the Little Sisters of the Poor outside the Supreme Court where oral arguments were heard on March 23 in the Zubik v. Burwell case against the HHS mandate. (photo: Addie Mena/CNA)

WASHINGTON — When does a government “accommodation” work as an opt-out for religious nonprofits that object to providing mandated services, and when does it authorize those same services?

Those questions were at the forefront of the March 23 Supreme Court hearing, as the eight-member court heard oral arguments from lawyers representing the Little Sisters of the Poor and six other cases filed by religious nonprofits that seek an exemption from the Health and Human Services’ contraceptive mandate. 

Zubik v. Burwell (No. 14-1418) specifically asked the justices to consider whether the accommodation violated the 1993 Religious Freedom Restoration Act (RFRA). But the practical details of the workaround occupied much of the oral arguments, with dueling views of its impact on objecting employers.

Wading into the fine print, several justices suggested that the government would effectively “hijack” the plaintiffs’ health plans, and so make them complicit in the provision of contraceptives and abortion-inducing drugs, while others dismissed the religious nonprofits’ claims.

By the time the lawyers for both sides wrapped up their arguments, legal analysts cautiously predicted that the case could end with a deadlocked 4-4 decision. The justices could also set aside the case and wait for a full complement of nine justices. The court’s spring term ends in June.

“We definitely got four votes: Justice [Anthony] Kennedy seemed to agree that [the accommodation] was a substantial burden on the Little Sisters,” Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, told the Register.

Teresa Collett, a professor at the University of St. Thomas School of Law, echoed that judgment.

“Kennedy seemed less persuaded by the government’s argument, and he also decided in favor of Hobby Lobby,” Collett told the Register, in a reference to the landmark 2014 case filed by a closely held family company that objected to the mandate on religious grounds, but received no accommodation from the government.

“However, with the absence of Justice [Antonin] Scalia, the question is: ‘Can we persuade Justice [Stephen] Breyer to side with us, so we have a victory, as opposed to a standstill?”

Indeed, some court watchers were surprised by Breyer’s persistent questions regarding the accommodation and the government’s refusal to consider alternative plans that would address the plaintiffs’ concerns, while allowing their employees to obtain the services through government-run programs. The administration already provides exemptions to houses of worship, like parish churches, as well as small companies and larger corporations that have not changed their health plans since the enactment of the Affordable Care Act. An estimated 25% of U.S. workers do not receive the mandated services through their health plans.

Zubik v. Burwell represented the consolidation of seven cases, including legal challenges to the mandate filed by the Archdiocese of Washington, the Diocese of Pittsburgh, The Catholic University of America and Priests for Life: Priests for Life v. Burwell, Southern Nazarene University v. Burwell, Geneva College v. Burwell, Roman Catholic Archbishop of Washington v. Burwell, East Texas Baptist University v. Burwell and Little Sisters of the Poor Home for the Aged v. Burwell.'

The Eternal Word Network (EWTN), in a separate case, also filed suit against the HHS mandate, and, like the Little Ssiters, is represented by the Becket Fund for Religious Liberty. The Register is a service of EWTN.

“I have a great deal of hope for our appeal,” Bishop David Zubik of Pittsburgh told the Register. “I am grateful that we live in a country where discussions like this can be approached with seriousness.”

But Bishop Zubik did not dispute the widespread judgment that the case could result in a deadlocked court.

“Whatever the decision will be, it is safe to say it won’t be a slam dunk,” he said.

During interviews with the Register, other plaintiffs were equally cautious. But they also expressed frustration that the government gave much more “weight” to the need for “seamless” access to contraception than to their religious objections.

The accommodation directs religious nonprofits that object to the mandate to write a letter or sign a form to that effect. According to the administration, the government then contacts the plan’s administrators to provide the service free of cost to the employer.

During the March 23 oral arguments, U.S. Solicitor General Donald Verrilli asserted that the rule properly balanced the state’s interest in promoting contraceptive use with the religious freedom of objecting employers, and thus met the high standard of judicial scrutiny set by the Religious Freedom Restoration Act.

RFRA states that the government may not “substantially burden” “sincerely held” religious beliefs without a “compelling" state interest.  Once that interest has been established, the government must choose the “least restrictive means” of achieving its goal.

The solicitor general argued that the mandate reflected Congress’ desire to provide the mandated services in a “seamless” manner. Any change in the plan would create more administrative overhead for the government, and possibly impede access to the services.

“The crux of the matter is that the government doesn’t see the weight of religious liberty,” said Father Frank Pavone of Priests for Life, after he left the Supreme Court. “As they made clear, the provision of these services is not their only compelling interest. They also want to provide them seamlessly to employees.”

“The problem is: The more seamless you make it, the more complicit you make us,” he said.

John Garvey, the president of The Catholic University of America and an authority on constitutional law, was grateful for the careful attention the court paid to plaintiffs' concerns. But he was also struck by the government’s insistence on a seamless provision of mandated services.

The mandate “wasn’t presented as a public-health argument,” Garvey told the Register. “Rather, it prevented the inconvenience of ... having to go elsewhere to get contraception.”

At the beginning of the oral arguments, former U.S. Solicitor General Paul Clement, the first advocate for the plaintiffs, was under pressure to explain why the rule “substantially burdened” his clients’ religious freedom.

The Little Sisters’ lawyers have argued that the administrative paperwork associated with the accommodation triggers access to their health plan.

Justice Elena Kagan suggested it was unreasonable to claim that the same form used to opt out of a government rule actually made the signer complicit in the delivery of objectionable services.

The plaintiffs, she suggested, were “objecting to objecting.”

Clement tried to clarify the nub of the dispute, and said, “If there were, in fact, two forms — one was an opt-out form; one was an authorization form — my clients would have no objection to signing the opt-out form.

“They would very much have an objection to the authorization form.”

Clement challenged the implication that his clients’ claims were unreasonable.

“[T]here are three legs to the stool in this case,” he said. “There is the fact that the government demands more than an objection, the fact that it enforces it with massive penalties, and the reality that, if that happens, then they are going to hijack our health plans and provide the coverage against our will.”

Later in the oral arguments, Verrilli stood before the justices and sought to shift the focus to the government’s compelling interest in securing the status quo.

While the Little Sisters’ lawyers had argued that the government could quickly establish a plan that offered free contraception to their employees, Verrilli explained that the “whole point of the mandate’s preventive coverage was to have it be part of regular health care, not something separate.”

However, Chief Justice John Roberts pushed back.

“In other words,” Roberts said, “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.

“They want 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 asked Verrilli to clarify why the government couldn’t offer a plan on the exchanges, and Verrilli replied, “You couldn’t do it under current law, Your Honor.”

Roberts replied, “Well, the way constitutional objections work is you might have to change current law.”

Verrilli said that Congress had determined the need for this mandate and if the desired method of providing the services was altered now, it would “result in significantly less use of medically necessary services.”

Kennedy picked up Roberts’ language in reply: “That’s why it is necessary to hijack the plans.”

Verrilli insisted the government had met RFRA’s standard and adopted “the least restrictive manner in the most effective manner.”

But the exchange led Breyer to speculate about the government’s unstated reasons for a “seamless” provision of services.

“[T]he reason I get that you don’t want to have the women to have to ask for the coverage is because … there will be that middle set of people who are inertia-bound,” said Breyer.

“Because poor people who don’t object religiously, if they get the contraceptives, that lowers the cost of health coverage later on,” he added. “Have I got that right?”

Breyer’s surprising comments stirred hopes that he might decide in favor of the Little Sisters.

But most legal analysts and plaintiffs, including Father Pavone, expect a 4-4 vote in June.

Yet, after the oral arguments were over, Father Pavone’s spirits received a needed lift, as he left the court house and saw the crowd out front rallying in support of the plaintiffs.

The large rally included women religious from many orders, as well as laywomen. And while the court was in session, they had sung rousing hymns like Ave Maria and Salve Regina.

“This case is not only in the hands of the justices,” said Father Pavone. “It’s also in the hands of God.”


Joan Frawley Desmond is the Register’s senior editor.