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Supreme Court Weighs Whether Obamacare's Contraception Exemption 'Hijacks' Religion

The Huffington Post The Huffington Post 23/03/2016 Cristian Farias
ATHENA IMAGE © Mark Wilson via Getty Images ATHENA IMAGE

WASHINGTON -- The Little Sisters of the Poor and other religious groups want the Supreme Court to free them from the government's requirement that they sign a form to opt out of providing contraceptive coverage to the women who work for them.

Without the late Justice Antonin Scalia on the bench, the court on Wednesday heard their pleas in a contentious hearing, likely split 4-to-4, where the groups' claim to religious freedom was pitted against the law's requirement that women employees have wide access to contraceptive services.

And not just any law, but the Affordable Care Act, which is now facing its fourth big test before the justices, in a case that could turn out to be a landmark for how the government draws lines for who gets to comply with generally applicable statutes and who is exempted based on their sincerely held beliefs.

Chief Justice John Roberts -- who has twice voted to uphold President Barack Obama's health care law but once ruled for a religious corporation who wanted a similar contraception exemption under it -- seemed in the end to fall on the side of the religious groups.

For Roberts, the emphasis was the law's seeming "hijacking" of the religious groups' health plans. "It seems to me that's an accurate description of what the government wants to do," Roberts said.

The set of seven consolidated cases, known collectively as Zubik v. Burwell, seemed to Roberts to be less about women employees unable to obtain contraceptive coverage from their religious employers, and more about the government taking over the groups' ability to manage their own affairs.

The four liberal justices came strongly on the side of the federal government, which means that the final outcome will once again come down to centrist Justice Anthony Kennedy, who is Catholic and during the hearing appeared conflicted by the "burden" the nuns and other religious groups face.

He suggested the groups "are in effect subsidizing the fact that they're being immoral." 

Zubik is a sort of sequel to 2014's Burwell v. Hobby Lobby decision, in which the then-five conservatives on the Supreme Court sided with a closely held corporation whose religious owners wanted to be exempt from Obamacare's contraceptive requirements.

In light of that decision and regulations developed by Department of Health and Human Services, the government provided religious groups who aren't otherwise exempt from the law's contraceptive requirement -- like churches and synagogues -- an accommodation: an opt-out form to indicate their objections, after which the federal government then coordinates coverage for the affected employees with a third-party insurance provider.

This opt-out form, the objecting groups claim, violates their beliefs under the Religious Freedom Restoration Act, the same law that the owners of craft stores chain Hobby Lobby seized on to win in 2014.

Some members from the Little Sisters of the Poor were in the courtroom for the hearing, and their lawyer, Paul Clement, warned the Supreme Court that if their objections to the government's opt-out mechanism are rejected, their faith would be burdened and they'd be complicit in sinful behavior.

"My clients would like to be conscientious objectors, but the government wants them to be conscientious collaborators," Clement said. "There is no such thing."

This is a developing story and will be updated.

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