It’s been nearly two years since the Supreme Court’s Hobby Lobby ruling, but for many conservatives, the legal questions surrounding the Affordable Care Act and contraception access still need adjudication. MSNBC’s Irin Carmon explained what today’s oral arguments in Zubik v. Burwell are all about.
The road here was messy, but it comes down to this: All new insurance plans are required to cover contraception under the Affordable Care Act, just like they have to cover a list of services and medications billed to be preventative care. Religious conservatives have balked, citing the federal Religious Freedom Restoration Act. In 2014, five justices of the Supreme Court agreed in Hobby Lobby v. Burwell that corporations owned by religious people didn’t have to offer the coverage on their insurance plans. The question now is how far that opinion stretches.The plaintiffs in Zubik start from a different place than those from Hobby Lobby: They were offered an “accommodation,” which the Obama administration says strikes a balance between respecting religious belief and respecting the rights of women who don’t share their employers’ view on contraception. The objecting nonprofits can simply notify their insurer or the government, and they don’t have to pay for any of it.
As we discussed in the fall, it’s this attempt at a compromise that’s at the heart of the case. A group of religiously affiliated employers said they wanted an exemption from the ACA’s policy related to birth control. The Obama administration crafted a policy intended to accommodate their concerns, effectively telling them, “No problem. Just fill out a form letting insurers know about the moral objection.” At that point, the contraception is covered by a third party at no cost to the employer.
Except, the religiously affiliated employers have said that’s not good enough — filling out the form, they argue, is a “substantial burden” on the practice of their religion. The paperwork related to their moral objections is itself morally objectionable.
By this measure, the case is less about a religious exemption and more about these employers’ discomfort in having to ask for a religious exemption. One of the attorneys challenging the ACA policy argued the religiously affiliated employers see the forms as a “permission slip for abortion drugs and contraceptives.”
At the appellate level, several federal appellate courts rejected the anti-paperwork argument, but one — the Eighth Circuit — found it compelling. The split necessitated the high court’s intervention and this morning’s oral argument.
The division makes the prospect of a 4-4 split a little more complicated.
As for how this morning’s oral arguments went, I’ll update this piece a little later.
Update: NBC News’ Pete Williams reported this afternoon that a 4-4 tie now seems quite likely.
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Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."