When faith-based charities come to the Supreme Court on Wednesday, they will once again be aiming their arguments squarely at Justice Anthony M. Kennedy, hoping to convince him that they deserve the same carve-out from Obamacare’s birth control rules that actual houses of worship enjoy.
Justice Kennedy was the key vote two years ago, when he joined four other Republican-appointed justices in holding that family-owned corporations that had religious objections couldn’t be forced to pay for their employees’ contraceptive health care coverage.
In a four-page opinion, he said the government had to offer a workaround so employees could get contraceptives without the costs landing on businesses.
Now, six years to the day after Obamacare became law, religiously affiliated charities are asking him to go further, saying the workaround he laid out for businesses isn’t good enough for nonprofits.
“I think there are some plausible and rational ways to approach this that would appeal to Kennedy,” said Robert Muise, senior counsel at the American Freedom Law Center and attorney for Priests for Life, a pro-life ministry that has sued the administration.
He said the justice will seek out the least-burdensome path for nonprofits that have objected in good faith rather than stand by the workaround he cited in 2014.
Daniel Blomberg, legal counsel at the Becket Fund for Religious Liberty, said if the government really wants to extend contraceptive coverage without violating religious beliefs, it should offer the coverage itself, potentially through Obamacare’s health care exchanges.
“I think the comments that [Justice Kennedy] laid out are very much a road map for why the government should lose here,” he said. “You can substitute the word ’accommodate’ for the word ’exchange.’”
Others insist that Justice Kennedy meant it when he said the accommodation “equally furthers the government’s interest but does not impinge on the plaintiffs’ religious beliefs.”
“We are very confident that Justice Kennedy will once again find that the opt-out process works,” said Gretchen Borchelt, vice president for reproductive rights at the National Women’s Law Center.
The case, Zubik v. Burwell, will be the fourth one under President Obama’s signature law to go before the court and the second one refereed over the complicated birth control rules of the Affordable Care Act.
Those rules have been controversial from the start because some religions hold that artificial contraceptives are sinful. That is a particularly widespread belief when it comes to emergency contraceptives, which may act as abortifacients.
Houses of worship were exempted from contraceptive coverage, but religiously affiliated nonprofits were not. Instead, after years of negotiations, the administration developed an “accommodation” that requires faith-based charities that object to contraceptives to sign a form earning an exemption, and the government or insurers then step in to provide the coverage.
Charities such as the Little Sisters of the Poor, one of the high-profile plaintiffs that has challenged the accommodation, say the mere act of signing the form makes them complicit in sin.
“The government is trying to force the Little Sisters of the Poor to allow their health care plan to be a conduit for services that violate their faith,” Mr. Blomberg said.
Obamacare backers, though, said signing a paper was a minor step.
“That seems like a fairly innocuous way of asserting your rights,” Rep. Bobby Scott, Virginia Democrat, said Monday in a conference call in support of the administration.
The Justice Department argues that a victory for the nonprofits would create a slippery slope.
“The precedent that this could set, if the court was to determine that the accommodation isn’t even good enough, is huge. That’s a dramatic expansion of religious liberty in this country,” said Holly Lynch, a bioethics analyst at Harvard Law School who is tracking the debate.
The nonprofits lost most of their cases at the lower appeals court level, though one circuit court did side with them.
The focus of oral argument Wednesday is likely to be the Religious Freedom Restoration Act of 1993.
That legislation, signed by President Clinton, said the government couldn’t burden someone’s religious exercise unless it could demonstrate that it was furthering a compelling government interest and doing it in the least-restrictive way possible.
Justice Kennedy remains critical to the outcome of the case, yet the death of Justice Antonin Scalia last month reset expectations for both sides.
The 2014 Hobby Lobby ruling was a 5-4 decision, with Justice Kennedy joining the majority. But after the death of Scalia, the religious groups are likely looking at a best-case scenario of a 4-4 split.
That would leave the lower-court rulings in place, meaning that religious nonprofits would have to sign the forms in some states and be exempt in others.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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