SCOTUS tackles contraception, health care and tangle of legal and moral questions

The Catholic Church knows a thing or two about sin and moral complicity. The Supreme Court has far less experience. Nevertheless, in Zubik v. Burwell, a case argued on March 23, 2016, the sixth anniversary of the Affordable Care Act, its eight justices must determine the extent to which the church’s understanding of sin is protected by U.S. law. Specifically, the court must decide whether the accommodation provisions established by the government to protect religious objectors from mandated contraceptive insurance coverage are sufficient under the Religious Freedom Restoration Act (RFRA).

RFRA, passed in 1993, prohibits the federal government from placing a substantial burden on the exercise of religion unless the government has a compelling interest and has narrowly tailored its actions in the least restrictive manner. The litigants in the Zubik case are religious colleges and organizations, such as the Little Sisters of the Poor, who qualify for an accommodation, but not outright exemption, from the Affordable Care Act. They argue the HHS regulations, designed to give employees “seamless” healthcare, “hijack” the religious employers’ insurance contracts and implicate those employers in the provision of contraceptives and abortifacients. 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. The religious employers counter that the opt-out provision does not relieve them from “collaboration” because the law still requires their insurance companies to provide contraceptive coverage to their employees.

Advertisement

The disputed regulatory and contractual provisions are exceedingly complicated and there is even some factual dispute regarding the logistics and legality of various proposed alternatives. It is impossible to tell from the oral argument exactly how the court will rule, although past decisions make it almost certain Justices Alito and Thomas will rule in favor of the Little Sisters and their co-petitioners while Justices Ginsburg, Kagan, and Sotomayor will rule in favor of the government. Chief Justice Roberts seemed inclined to accept the hijacking argument, which means he is leaning against the government. Justice Breyer seemed genuinely distressed at the prospect of discerning where to draw the line between a substantial and non-substantial burden on religion. It is more likely than not, however, he will agree with eight of the nine lower courts who drew that line in favor of the government. As in so many cases, the deciding vote rests with Justice Kennedy.

A tied decision would leave all the lower court rulings in place. That possibility, which would result in conflicting applications of the law depending on the geographic location of an employer, may encourage the justices to craft a creative compromise decision that would continue the controversy until a ninth justice is on the bench.  

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
William Rydberg
1 year 8 months ago
It's troubling not to hear American Catholics say word one about even discussions about changing the System... in The Risen Christ,
Carlos Orozco
1 year 8 months ago
I agree. I would guess having to choose between two terrible candidates, as far as can be from Christian positions, would make one consider that the system is broken beyond repair and in need of urgent change. Real change.
Eugene Fitzpatrick
1 year 8 months ago
Perhaps the Deity, having removed Scalia from the scene, may not be looking too kindly at the attempt to hijack the mind of God by the plaintiffs in the Zubik vs. Burwell affair, what with their obfuscatory sophistry and labyrinthine forays into the swamp of abstract irrationality.This is the phantom never-never land where Scalia liked to prance and palaver and from where he exited with highly damaging opinions that have had the practical result of hurting many good people. Little Sisters, don't you see you've been diminished to pawns of the USCCB's radical right neurotics?
William Rydberg
1 year 8 months ago
Prolix. I think that the Sisters are on the side of the Angels on this one bud... in The Risen Christ,
J Cosgrove
1 year 8 months ago
Wow, hijack, obfuscatory, sophistry, labyrinthine, swamp, abstract irrationality, phantom, never-never land, prance, palaver, pawns, radical right, neurotics. I never knew our good sisters were in such good company. Such Christian charity is a great endorsement of Scalia that it would be hard to top. It did send me to my thesaurus to see if there were any words left. I found one, "vacuous." By the way, what is the radical right? Is that support for the "divine right of kings?"
Stuart Bintner
1 year 8 months ago
This situation is complicated by the reality that the vast majority of Catholics (possibly a sensus fidelium) have spoken, and contraception is not an issue.
Carlos Orozco
1 year 8 months ago
So little attention has been given by the Catholic intelligentsia to the good fight of the Little Sisters of the Poor. The snubs could care less about the Obama administration forcing -directly or indirectly- Catholic institutions to provide contraceptives and even abortifacients. These so-called Catholics don't wish to "tarnish", with their protest, the last months of the current President or -God forbid!- rock the boat of the frail candidacy of the godmother of ISIS in Libya and Syria, during her quest for the White House. Christians can be sacrificed, right? Some good Easter news: Now that I mention secretary Clinton's boys, even though the corporate media is ignoring it, the collapse of Daesh (ISIS) continues in Syria, with Russian and Syrian forces taking over the city of Palmyra. With no break ahead for them, their capital Raqqa seems to be the next target. Christ is Risen!!!

Advertisement

Don't miss the best from America

Sign up for our Newsletter to get the Jesuit perspective on news, faith and culture.

The latest from america

Images: CNS/Composite: America
On Nov. 11, the Catholic Church lost a moral titan in the long struggle for racial equality and justice in the United States.
Shannen Dee WilliamsNovember 22, 2017
Senior Gen. Min Aung Hlaing, Myanmar military commander-in-chief, speaks during the Union Peace Conference Aug. 31 in Naypyitaw (CNS photo/Hein Htet, EPA).
Gen. Min Aung Hlaing wields great political power in the country.
Jacob Tremblay and Julia Roberts in “Wonder” (CNS photo/Lionsgate). 
‘Wonder’ is a tween melodrama on a mission of mercy.
Simcha FisherNovember 22, 2017
The change was in “no way” a response to the C.C.H.D.’s persistent online critics, an archdiocesan official says.
Kevin ClarkeNovember 22, 2017