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Will Obamacare's Contraception Rules Survive the Supreme Court?

By Casey C. Sullivan, Esq. on March 23, 2016 | Last updated on March 21, 2019

The Supreme Court heard lively oral arguments this morning in a case over whether religious organizations must comply with Affordable Care Act rules on the provisioning of contraception through employee health insurance plans.

Those employers, which include religious universities, hospitals, and one group of nuns, don't actually provide contraception directly, however. They are already exempt from that requirement. Once they notify the government of their objections, their insurer handles employee contraception on its own. But even that, the employers argued before the Supreme Court today, is too great a burden on their religious beliefs. Here's how the arguments went down.

Could Kennedy Kill Contraception Coverage?

The petitioners' legal theories aren't exactly the strongest. They have, for example, been rejected in appellate court after appellate court, winning judicial support only in the Eighth Circuit. So if they're going to succeed in the Supreme Court, petitioners need Justice Kennedy on their side. (Even that might not be enough now, with only eight justices on the Court.)

Justice Kennedy, however, was somewhat mercurial during oral arguments. He seemed to reject out of hand one of the arguments put forward by Noel Francisco, an attorney arguing for the petitioners. Francisco proposed that, having allowed a full exemption for churches, the government could not then require more from religiously-affiliated groups that were not churches. As Francisco explained it:

"I don't think the government can take the position that the Little Sisters of the Poor are any less at the core of a, quote-unquote, 'church' than a house of worship, where we have time --"

Kennedy was not convinced:

"The same with a university?" ... "Once you give it to a church, you have to give it to any other religious organization." ... "It's going to be very difficult for this Court to write an opinion which says that once you have a church organization, you have to treat a religious university the same."

In the end, though, it looked like Justice Kennedy was leaning the petitioners' way. Is there not a less restrictive alternative that would allow employees access to birth control without hijacking religious organizations' insurance plans, he wondered.

Justice Kennedy repeated asserted that the inquiry "has to be whether or not there are less restrictive alternatives." (That's telling, as there almost always are.)

Sotomayor: Government Can't Work This Way

The more liberal members of the Supreme Court highlighted how difficult government regulation could become should the petitioners' legal theories succeed. If the government has created a process whereby religious individuals can opt out of a regime that offends their beliefs, and individuals object to that very act of opting out, what more can the government do when one "objects to objecting?" Justice Sotomayor articulated this theory the most clearly:

"... when will any government law that someone claims burdens their practice ever be insubstantial? Because every believer that's ever come before us, including the people in the military, are saying that my soul will be damned in some way ... If that's always going to be substantial, how will we ever have a government that functions?"

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