Like the camel that gets its nose under the tent, once the federal government butts into people’s business it’s very hard to get it out. But in a per curiam decision in Zubik v. Burwell on May 16, 2016, the Supreme Court may have indicated that even in the age of the nanny state, even Supreme Court Justices can abide only so much.
Zubik may be better known to the public as “The Little Sisters of the Poor” case. There, the high court granted certiorari to review appeals by seven Christian or Roman Catholic groups or organizations in suits against the Department of Health and Human Services, currently headed by Sylvia Burwell, who, thanks to the Affordable Care Act, a/k/a Obamacare, may find herself in the caption of more Supreme Court cases than she ever dreamed.
The question is Zubik is akin to how many angels can dance on the head of a pin. Thanks to the Supreme Court in National Federation of Independent Business v. Sebelius, the ACA requires every adult American to carry health insurance or to pay a penalty – John Roberts calls it a “tax” – to the federal government for not doing so. Thanks to the lobbyists who actually wrote the law and the regulators who draft its implementing provisions, every employer who provides health care to its employees under the Act must also, in the words of Zubik, “cover certain contraceptives.”
To many religious groups and orders, including Priests for Life, the Roman Catholic Archbishops of Washington, D.C., East Baptist University, and the aforementioned Little Sisters of the Poor, this is anathema. Not only do their sincerely held religious beliefs teach against contraception, but they also in some cases at least vociferously oppose abortifacients, which prevent a fertilized egg from being implanted or otherwise interfere with the growth of human life from the moment of conception.
But the Supreme Court held in 1973 in Roe v. Wade that abortion is a woman’s constitutional right, and in 2012 it held in Sebelius that Congress can force everyone to buy, and employers to provide, health insurance that, through the Code of Federal Regulation, must include birth control. So what to do about that pesky First Amendment, which requires no emanations from the penumbra to guarantee the free exercise of religion, especially since Congress passed the Religious Freedom Restoration Act of 1993?
RFRA provides in part that Americans don’t have to abide by otherwise generally applicable laws if those laws “substantially burden” the exercise of their religion. It would seem that requiring the Little Sisters of the Poor and a group called “Priests for Life” to provide abortifacients to their “employees” easily meets this test: What could be a more substantial burden than requiring you to do something that literally, in your view, may eternally damn you to hell?
Never passing up the opportunity to make people fill out a form, though, the government has a solution. It says that religious objectors don’t have to provide otherwise required contraceptive coverage if they fill out a form stating that they object on religious grounds to doing so, and submit that form to either their health insurer or the federal government.
But in much the same way that some people argue they shouldn’t have to get a permit to exercise their freedom of speech, the Little Sisters of the Poor and the other objectors in Zubik argue that even filling out the form imposes a “substantial burden” on their religious freedom.
Even in this post-Obergefell same-sex marriage environment, the Supreme Court doesn’t get paid enough to decide this delicate question. So following oral argument, it asked the parties to address in supplemental briefs “whether contraceptive coverage could be provided … without any such notice from petitioners.”
In other words, might it be okay with everyone if the Little Sisters of the Poor and others looked the other way while their own insurers provided such coverage, so long as the Little Sisters of the Poor didn’t have to pay for it and didn’t have to say that they object?
Remarkably, all parties agreed that this would be okay, although just how they’re going to work it out remains unclear. In this case, the Court found, filing suit was a pretty good indication that the objectors “have made the Government aware of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement …'” But isn’t filing suit rather more burdensome (and expensive) than simply filling out the form? What must future Zubiks, et al, do? Choose between filling out a form and filing a federal court lawsuit?
In copping out in this case, the Court made plain that it “expresses no view on the merits of the cases” before it, and cited a few precedents for not doing so. In particular, it gave no guidance on “whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”
Perhaps with an evenly-divided court with just eight justices this is the best we can do for now. So excuse me for asking, but isn’t answering the hard questions exactly what the taxpayers of this country pay Supreme Court Justices to do?
David Applegate is a Chicago-based trial lawyer and partner at the law firm of Williams Montgomery & John Ltd.
