Six years ago yesterday, President Barack Obama signed the Affordable Care Act into law. And so perhaps it was only fitting that yesterday the ACA was back at the Supreme Court – now, for the fourth time. The issue before the Supreme Court stems from the requirement, imposed in regulations implementing the ACA, that employers provide their female employees with health insurance that includes no-cost access to twenty different kinds of birth control. Two years ago, in Burwell v. Hobby Lobby, the Supreme Court considered a challenge to this mandate by two closely held companies owned by deeply religious families, who did not want to make some forms of birth control available to their female employees because they believed that it would make them complicit in abortion – which they oppose.
By a vote of five to four, the Justices ruled in Hobby Lobby that the companies could not be forced to comply with the mandate. Among other things, the Justices in the majority noted that the federal government had other, less burdensome options to ensure that the women who worked for those companies could still have access to birth control. For example, the government had come up with a work-around for religious charities and colleges that object to providing their employees and students with access to birth control: the employers can fill out paperwork opting out of providing the coverage, and the government will make sure that the women affected will still be covered.

You may be able to see where this is headed: back to the Supreme Court, which heard arguments yesterday in a challenge to the work-around itself brought by plaintiffs that fall between the companies and churches on the spectrum of their ties to religion. The new challengers are the Little Sisters of the Poor and other religious charities and colleges. They believe that, even with the work-around, they are still facilitating their employees’ access to birth control by authorizing the government to use their insurance systems to provide that access. And three of the five Justices who were in the majority two years ago in the Hobby Lobby case this time seemed inclined to rule in their favor. Justice Clarence Thomas, who was also in the majority, did not ask any questions but presumably would provide a fourth vote. The fifth member of the majority, however, Justice Antonin Scalia, passed away last month.

During the first half of the oral argument, the federal government would have had good reason to be optimistic that it could win the case outright. The government clearly had the support of all four of the Court’s more liberal Justices. Justices Ruth Bader Ginsburg and Sonia Sotomayor, for example, both suggested that they did not regard the work-around as creating any real problems for groups like the Little Sisters of the Poor – after all, someone else is actually providing the access to birth control, even if the groups object to it. And they left little doubt that they see the government as having an important interest in ensuring that women who work for groups like the Little Sisters of the Poor still have uninterrupted access to birth control. Sotomayor told attorney Noel Francisco, who argued on behalf of one group of challengers, that “there is plenty of evidence . . . that when contraceptives are provided to women in a seamless way, . . . the number of unintended pregnancies dramatically falls, as does the number of abortions” – thereby reducing health risks for those women.

The more liberal Justices also emphasized that, in their view, religious rights are not absolute, but may instead sometimes have to yield to competing demands. Thus, Justice Stephen Breyer told attorney Paul Clement, representing another group of challengers, “[s]ometimes when a religious person who’s not a hermit or monk is a member of society, he does have to accept all kinds of things that are just terrible for him” – such as Quakers who opposed the war in Vietnam but still had to pay taxes, or “the people who object to laws protecting blasphemy.”

The more liberal Justices also pushed back against efforts by both Clement and Francisco to portray the work-around as unfair to religious charities and schools when religious institutions like churches and mosques are completely exempt from the mandate. Clement repeatedly suggested that the Little Sisters of the Poor were being penalized for opting to do charity work, asserting that “if my clients would have just stuck to their knitting and not helped the elderly poor, they could qualify” for the outright exemption.

Citing “a long line of cases which says that there’s something very special about churches themselves,” Justice Elena Kagan suggested that if the Court were to rule that exemptions created for churches would in fact extend to “all religious people,” Congress might react by not creating any exemptions at all. Even Justice Anthony Kennedy – whose vote the challengers absolutely must secure – expressed some support for this idea, telling Francisco that “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. I just find that very difficult to write.”

If the federal government was hopeful that a member of the Hobby Lobby majority might provide it a fifth vote to prevail, that optimism was short-lived. Chief Justice John Roberts made clear that, as in Hobby Lobby, he was on the challengers’ side. When Solicitor General Don Verrilli argued that the whole point of regulations like the birth-control mandate was to ensure that people would get preventative services as part of their regular care, Roberts shot back: “[I]t seems to me you can’t say that what you’re trying to do is make sure everybody has this coverage. You want to make sure they have it through the program set up by the Little Sisters, and that’s what they object to,” because they believe that doing so is “sinful.”
Justice Samuel Alito, the author of the Court’s opinion in Hobby Lobby, rejected the idea that the mandate and work-around were even necessary to ensure that women who wanted access to birth control would be covered. Why, he asked, couldn’t the women who worked for religious non-profits or were students at religious colleges simply buy a policy that would cover birth control on the exchanges that the Obama administration has set up for individuals who aren’t eligible for health insurance through an employer? When Verrilli responded that it would defeat the purpose of the mandate to require a separate policy, Alito was dubious. Lots of people have two insurance cards, he told Verrilli – for example, one for their general medical needs and the other for their dental or vision coverage. Roberts echoed this sentiment, asking Verrilli whether, in a nutshell the dispute “comes down to the question of who has to do the paperwork.” And if it came down to a choice between imposing an additional administrative burden on the female employees, on the one hand, and requiring groups like the Little Sisters of the Poor to violate “basic principles of faith,” Roberts left little doubt that he would side with the Little Sisters of the Poor.
In the wake of Hobby Lobby, the federal government may well have considered Roberts and Alito (as well as Thomas, even though he did not ask any questions) a lost cause. But any hopes after the first half of the oral argument that Kennedy would vote for the government were mostly dashed. At one point, Verrilli explained that the employees of a church or temple, to which the mandate does not apply, would be forced “to purchase a second insurance policy,” which “really becomes a financial penalty for them.” The point may not have had its intended effect, though, as it led Kennedy to observe that it “just underscores that” the religious non-profits’ plans “are, in effect, subsidizing the conduct that they deemed immoral.” Verrilli seemed to be trapped in a no-win scenario. When he explained that the non-profits weren’t actually subsidizing the birth-control coverage, Kennedy then queried: “If it’s so easy to provide, if it’s so free, why can’t they just get it through another plan?” And a few minutes later, in response to Verrilli’s assertion that requiring women to buy separate birth-control coverage would “result in significantly less use of medically-necessary services,” Kennedy used the same language that the Chief Justice and the Little Sisters of the Poor used to describe the government’s role in providing coverage, exclaiming that “[t]hat’s why it’s necessary to hijack the plans.”

The Court could still surprise us, as it did in the challenge to the ACA’s individual mandate, in which the oral argument suggested that the mandate would be declared unconstitutional but five Justices ultimately voted to uphold it. If the oral argument is representative of the Justices’ votes, the Court will divide four to four, and the Justices will have to figure out what to do next. One option would be to issue a simple one-sentence order (as it did in another case on Tuesday) affirming the lower court’s decision. But as my colleague Lyle Denniston has explained, that presents a bit of a conundrum: although all of the lower courts whose decisions were under review today had upheld the mandate against the challengers’ attacks, another federal court of appeals has struck it down – creating the possibility that the mandate would be in effect in most, but not all, of the country.

Another option would be to wait for a ninth Justice to be confirmed to the Court, to break the tie. But no one knows when that will be. And if there is no replacement for Justice Scalia before the presidential election, and a Republican is elected to the White House, the dispute could disappear altogether, given the Republicans’ vows to repeal the ACA – or at least regulations like these implementing the law.
We could know more in the next few weeks, or we may have to wait until the hot and humid weeks of late June for an answer from the Court. Stay tuned.