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Opening arguments in ACA contraception case hint at deadlock

A 4-4 tie would keep affirm previous decisions that government exemptions are lawful

If Wednesday's opening arguments are any indication, the Supreme Court case regarding the Affordable Care Act's contraceptive coverage mandate could split the justices evenly, affirming previous rulings that the government exemptions offered to religiously affiliated organizations are lawful, but leaving other courts without a national precedent.

Citing the 1993 Religious Freedom Restoration Act, religious leaders have argued that the ACA mandate is forcing them to comply with an issue they find immoral. After the Supreme Court's 2014 decision that Hobby Lobby and similar closely held companies that object to contraceptive coverage do not have to adhere to the law's mandate, the government created exemptions to allow religiously affiliated companies to notify the federal government of their objection, which would defer the cost of birth control benefits to the organization's insurance company.

However, attorneys for the religious petitioners argued that the exemption still violates their religious freedom by forcing organizations to authorize healthcare coverage that runs counter to their beliefs. Justice Anthony Kennedy, who has emerged as the Supreme Court's swing vote in this case, pushed back when plaintiff attorneys argued that religiously affiliated organizations should be offered the same exemptions as churches.

"It's going to be very difficult for this Court to write an opinion which says that once you have a church organization, you have to treat a religious university the same," he said. "I just find that very difficult to write."

But Kennedy also questioned whether it was necessary for the government to require plans to provide contraceptive coverage, arguing that individuals could simply purchase a second plan in the individual exchange market to cover contraception without forcing religiously affiliated entities to authorize coverage.

Arguing on behalf of the government, Solicitor General Donald Verrilli countered that forcing individuals to purchase a second plan would create substantial coverage barriers that the ACA exemptions specifically tried to avoid.

"The whole point of this provision, the whole point of it, was to ensure that people who got health insurance would get the preventive services as part of their regular care from their regular doctor with no barriers," Verilli said.

Several of the four liberal justices pointed out that religious organizations are frequently at odds with government regulations, and often face much heavier burden than the exemptions laid out for religious organizations. Justice Stephen Breyer argued that although Quakers opposed the Vietnam War, they were still required to pay taxes used to fund the military.

"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," he said.

To learn more:
- here's a transcript of the opening arguments

Related Articles:
Supreme Court contraception case hinges on decades-old religious freedom law
Supreme Court will hear ACA contraceptive mandate challenge in consolidated case
Proposed rule: Insurers to pay for birth control at closely held companies
Supreme Court strikes down birth control mandate for closely held companies