Supreme Court hears arguments on birth control

An epic legal clash between religious liberty and reproductive rights left the Supreme Court deeply divided Wednesday, raising the likelihood that the eight justices will deadlock over religious non-profit groups’ challenge to the federal government’s so-called “contraceptive mandate”.


Breslin, 24, who moved to Washington, D.C., from her native Pennsylvania to attend Trinity Washington University, a Catholic women’s college, said the federal government has offered sufficient accommodations for the Little Sisters of the Poor and other religious groups that don’t want to comply with the mandate. Religious groups face an uphill battle without late Justice Antonin Scalia, who voted in favor of the 2014 Hobby Lobby decision that granted certain privately held companies the right to refuse to pay for birth control under the Religious Freedom Restoration Act of 1993. The government contends it has sufficiently minimized, if not completely eradicated, the burden on religious employers because it permits them to opt-out of providing and paying for contraceptives through a simple notification form.

But now some religious groups are claims that filling out forms opting out of the process and allowing insurers to provide the coverage goes against their religious beliefs.

With only eight judges on the Supreme Court, if the high court splits 4-4, then the lower ruling favoring the Little Sisters will stand and the Obama administration would lose its case.

“My clients would love to be conscientious objectors, but the government insists that they be a conscientious collaborator”, Clement said. Religious institutions like schools and churches have said that forcing them to comply with that requirement violates a federal law protecting religious freedom.

Justice Anthony Kennedy was the central figure in the arguments on Wednesday – both in terms of his sought-after vote, but also in terms of his questions, which were highly skeptical to lawyers on both sides of the case. A ruling adverse to the government would leave the law largely in place, but with fewer employers offering no-cost coverage for contraceptives.

When Solicitor General Verrilli said it would take a change in the law to create a new mechanism for providing such organizations’ employees with coverage, Chief Justice John G. Roberts Jr. replied, “Well, the way constitutional objections work is, you might have to change current law”. Anything more, they said, would require employees to find and pay for separate insurance policies just for contraceptives. But different rules would apply in parts of the country in which another appeals court has sided with the challengers. But, he added, “a honest objection to opting out of a legal requirement based on the knowledge that the government will then arrange for others to fulfill the requirement does not establish a substantial burden”.

Justice Stephen G. Breyer cited several examples of categories of people who do not get accommodations when their religious beliefs are offended by government action, such as Quakers who object to the use of their tax money to finance wars, or people who object to laws that protect blasphemy as free speech.

No timeline was set for a decision, although the court typically issues judgments before recessing at the end of June.

Many religious groups around the nation have challenged the accommodation, saying that providing the required information that would allow insurance companies or the government to provide the coverage makes them complicit in conduct that violates their faith.

“They shouldn’t have to do that because it’s against their moral beliefs”, Ms. Brinker said.

Clement argued that an accommodation isn’t “immune from RFRA analysis” and that the problem is giving an accommodation to some religious groups, but not all. The accommodation is a “sensible balance” between the competing interests of the law and religious values, Verrilli said.

In an op-ed, Rep. Chris Stewart condemns the Obama administration for trying to force the Little Sisters of the Poor, an order of Roman Catholic nuns, to violate Catholic moral teaching by providing contraceptives to its employees.


After oral arguments over the Obamacare contraception mandate before the Supreme Court Wednesday, a 4-4 split appears to be a likely outcome for the case.

What the Little Sisters of the Poor Case Could Mean for Religious Liberty