WASHINGTON (MEDIA GENERAL) – The Little Sisters of the Poor’s lawyer stood before the high court Wednesday to argue that federal health rules mandating contraceptive coverage violate the moral laws of a higher power.
The sisters, joined by six other religious groups in Zubik v. Burwell, argue that although the government exempts them from directly covering employees’ birth control, their religious convictions are still violated since the official government waiver form requires the disclosure of their insurance provider, which later covers contraceptives independently.
Government regulators are “going to hijack our programs” and make the insurance companies pay for contraceptives another way, warned Paul Clement, representing the Little Sisters.
Instead, the groups’ attorneys want the government to create a standalone entity to provide free contraceptives coverage. The end result for women with employers who oppose contraceptives would be their regular health insurance plan and then a second, free, government-provided birth control service.
The Supreme Court’s eight justices could barely stay quiet at some points, lobbing one question on top of another.
Justice Sonia Sotomayor challenged the Little Sisters’ attorney, saying his argument parroted conscientious objectors during the Vietnam War who refused to sign conscientious waivers for fear that another person would be forced to fight in their place.
Everyone says “my soul will be damned” due to any number of objections countered Sotomayor, so “how will we ever have a government that functions?”
Clement responded that “It’s a little rich for the government to say ‘This isn’t your plan, don’t’ worry about a thing,’” when it’s the employer’s plan or third-party paying for birth control, through a government-facilitated process.
Justice Stephen Breyer piled on, asking how the nuns’ moral argument, while undoubtedly sincere, is any different than pro-life public employees compelled to clear snow in front of abortion clinics, Quakers paying taxes that end up funding wars, or Muslims receiving no extra holidays despite holy days falling on Saturdays.
In a later portion, Justice Elena Kagan clarified that churches, without a doubt, are assured exemptions, but letting the waivers system branch out to small businesses and any manner of objectors, surming, “We might as well pack it all in.”
The court’s left wing suggested that while legitimate objections do exist, the government had satisfactorily limited an undue burden on religious groups by excusing them, through a waiver form, from subsidizing contraceptives for female employees.
The petitioners disagreed, maintaining that devout people like the Little Sisters deserve the same exemptions as churches even though they employ workers and don’t stay at home “doing their knitting.”
Chief Justice John Roberts appeared squarely on the religious groups’ side, seeming to favor the argument that the government was unnecessarily “hijacking” religious organizations’ insurance packages.
“They think that complicity is sinful,” explained Roberts, reasoning that women could easily obtain coverage through a government-run contraceptives service.
Roberts also seemed to dismiss the notion that women, as argued by the government, would be unduly burdened by needing two accounts with two doctors to obtain a full array of health coverage.
The most vociferous opponent of the government’s current regulations was Justice Samuel Alito, who dominated questioning of U.S. Solicitor General Donald Verrilli. Alito also jabbed Obamacare’s botched rollout, sending the courtroom into laughter.
Justice Anthony Kennedy, the court’s most frequent swing vote, asked pointed questions of Verrilli as well. He needled the government’s insistence on a certain level of compliance from religious groups, saying, “It seems to me that that’s an undue burden.”
If the government was hoping to peel off Kennedy’s support, they likely left disappointed.
Justices are slated to discuss the case this Friday, casting votes in secrecy, and then set about writing their final opinions.
While the seat vacated by the late Antonin Scalia remains empty, the court’s eight sitting justices will decide the case.
If there’s a 4-4 tie, lower court rulings will remain in place, meaning the government’s rules stand in all sections of the country except in the 8th Circuit.
A final ruling is expected by the end of June.
Follow Chance Seales on Twitter: @ChanceSeales