Here’s What Went Down In The Zubik v. Burwell Arguments

Wednesday morning, the Supreme Court heard arguments in the case of Zubik v. Burwell, the latest challenge to the contraceptive mandate.

The petitioners in this case are Priests for Life, Southern Nazarene University, Geneva College,, Roman Catholic Archbishop of Washington, East Texas Baptist University, and Little Sisters of the Poor Home for the Aged – all of whom argue that by signing a form saying that their religious beliefs will not allow them to provide their employees and students with an insurance plan that covers birth control. Why? Because signing that form then requires the insurance companies themselves to contact those employees and provide them with birth control coverage separate from their employer’s plan.

They claim that signing this form is a “substantial burden” under the 1993 Religious Freedom Restoration Act, as it makes them complicit in what they believe is a sin. Particularly since they erroneously believe that birth control is an “abortifacient.” The mere act of “opting out” allows for the government to step in and provide that coverage to their employees. If they refuse, they face significant fines.

However, the RFRA does allow for religious burdens, so long as the program is “the least restrictive means” by which to achieve a “compelling government interest.”

The petitioners case was argued by Noel Francisco and Paul Clement, who also argued the Hobby Lobby v. Burwell case. Interestingly, in that case he argued that they ought to be allowed to opt out of providing birth control to their employees, as there was a “less restrictive means” of compelling that governmental interest which is the non-profit exemption he is now arguing against.

In arguments, Justice Sotomayor brought up the comparison that has been made between these groups and military objectors. She pointed out that if a person were to refuse to register for the draft due to being a pacifist, but also refuse conscientious objector status on the grounds that the government would then find another person to serve in their place, they would be put in jail. She pointed out that if all the conscientious objectors were allowed to refuse to register without making an official conscientious objection, that the government would not be able to do its job.

Clement agreed with her on that point, saying “I think it would be very difficult to administer that kind of system if either you couldn’t even know about the objection or you couldn’t take any steps on the government’s part to fill the spot.”

He then tried to explain that this “objection to objecting” was different, as another government program could hypothetically be created so that no one had to “opt out.”

Justice Breyer noted that a lot of people have to do things and pay for things that they oppose for religious reasons that are perhaps even more offensive to them than filling out a damned form would be for The Little Sisters Of The Poor:

Sometimes when a religious person who’s not a hermit or a monk is a member of society, he does have to accept all kinds of things that are just terrible for him. Think of the Quakers, the Quakers who object to Vietnam. Think of the people who object to laws protecting blasphemy. Think of the people who object to shoveling the snow in front of the walk that will lead to the abortion clinic. Think of the Christian Scientists who know when they report the accident, the child will go to the hospital or the adult and receive medical care that is against their religion.

Clement and Francisco were hesitant, however, to offer an example what they thought would be an even less restrictive means of providing those employees with birth control coverage–saying that he was representing several different groups who may have their own objections to anything he might suggest. The best idea they could come up with would be for the women to purchase a separate another plan for themselves on the healthcare Exchange–possibly one which could cover only birth control. He suggest that the government could work with Aetna or some other insurer to create an “uber-policy” that would cover everyone’s birth control. This, they claim, would just mean that the employee would fill out the paperwork rather than the employer.

The problem with this, as both Solicitor General Don Verrilli and Justice Breyer pointed out, is that the government has an interest in making access to birth control as seamless and obstacle-free as possible. Studies show that when it’s a pain in the ass to get birth control, many won’t bother.

General Verrilli also pointed out that having a separate insurance policy would also likely require the patient to go to a different doctor for birth control, as the doctor beholden to the employer’s plan would essentially be banned from discussing or prescribing birth control as part of that plan.

“The difference is this: It’s not just about filling out paperwork; that if you’re a woman employee, you go to your regular doctor, you say you have a medical condition ­­ I ­­ that puts me at risk of being pregnant, or I just want contraceptive coverage, or I need contraception to treat a medical condition. And the way this works now, if ­­ if the RFRA exemption is granted here, is that the doctor has to say I cannot help you with that.”

The petitioners also tried to argue that since exemptions are being given for grandfathered plans, actual churches themselves, and because employers with under 50 employees do not have to offer insurance at all, that the country had not demonstrated a compelling interest in this goal. However, Justice Ginsberg pointed out that pretty much all new government programs go through a transitory period, and that this doesn’t mean that there is thus no compelling interest.

The issue here is that the petitioners are supposed to be claiming that them signing a form, letting the government know they oppose birth control, and saying who their insurer is so that the insurer can separately contact the employee is not the least restrictive means of achieving this “compelling government interest.” From what I can tell, they failed to do that. Saying “Well, just create a new government program that just handles all the birth control so no one has to opt out” isn’t really an answer.

Given that Kennedy cited the existence this process in his opinion in favor of Hobby Lobby, I am hoping that he will continue to see it as “the least restrictive process” available. If he doesn’t, and the court is split 4-4–the lower courts ruling will stand and there will be different laws for different states and areas of the country until it can be decided on by a full court.

[Zubik v. Burwell]