The questions and comments of Supreme Court justices during the oral argument over the contraceptive mandate case indicated that the court is divided and Justice Anthony Kennedy is going to be the key vote as he often is when the court is divided.

But a week after the March 23 oral argument, the court took the unusual step of suggesting a solution that may resolve the dispute. 

The case, Zubik v. Burwell, revolves around whether the federal government, under regulations established to implement the Affordable Care Act, can require a religious organization to notify the government through a form if it objects to providing contraceptives in its employee health insurance plan. The government will then notify the insurance company that it is the company's responsibility to provide the coverage separately and for free. 

The government argues that this form is a minor administrative procedure that will help ensure that the organizations’ women employees have access to contraceptives, while the religious employers say that it is violates their religious freedom by forcing them to involve themselves in something that they consider immoral.

The court's proposed solution is to eliminate the form and simply have the insurance company provide the contraceptives separately once it learns from the religious organization that it does not want them as part of its plan.

Eight appeals courts sided with the government and one with the plaintiffs, which forced the U.S. Supreme Court to take the case in order to determine what will be the law of the land.

If the court splits four to four, the decisions of the appeals courts will stand, meaning that the law will be applied differently in different parts of the country. The desire to avoid this result is probably why the court suggested a compromise. 

Attempting to predict Supreme Court decisions based on oral arguments is not easy, but the oral arguments can help us understand the disputed issues. 

First, although the lead plaintiff in the case is Bishop David Zubik of Pittsburgh, the plaintiffs’ lawyers always talked about their most photogenic and sympathetic client, the Little Sisters of the Poor. Likewise, Justices Samuel Alito and John Roberts mentioned them, while the lawyers and justices supporting the government never used the words, "Little Sisters," preferring to refer to the "plaintiffs" or "petitioners."

Both sides know that this is not just a legal battle but a PR battle as well, and the government and its supporters did not want to be seen as picking on the Little Sisters, whom everyone admires for their work with the elderly. 

Second, it was clear that the three women on the court (Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan) were sympathetic to the government’s desire to make contraceptives available to women. Justice Stephen Beyer appeared ready to join them.

Justice Clarence Thomas, as usual said nothing, but Justice Alito was clearly sympathetic to the plaintiffs. Most court observers felt Chief Justice Roberts was also siding with the plaintiffs, although he has disappointed conservatives in the past by supporting the Affordable Care Act when it was challenged in the court.  

This leaves Justice Kennedy to give the government the fifth vote it needs. If he votes with the plaintiffs, the court is deadlocked in a tie since one seat on the court is empty with the death of Justice Antonin Scalia.

So what did the justices focus on with their questions and comments?

No one challenged the sincerity of the plaintiffs’ belief that complying with the government would be contrary to their faith. Nor did anyone challenge the view that making sure that women have access to birth control is a legitimate government interest.

As a result, the focus was on whether the government was imposing a "substantial burden" on the plaintiffs and whether it was the "least restrictive" approach that would accomplish the same goal. These are key terms from the Religious Freedom Restoration Act (RFRA), the law the plaintiffs argued the government was violating.

Justice Sotomayor argued that it is not enough for the plaintiffs to simply say that the action required by the government was immoral and against their faith.

If "saying that my soul will be damned" is all that is necessary for proving substantial burden, she said, then "how will we ever have a government that functions?" Every believer who has come before the court has believed that or they would not be in court.

"[I]t’s not a substantial burden if someone else is going to do the act you are objecting to," asserted Sotomayor.

Justice Sotomayor compared the plaintiffs to conscientious objectors who tell the government they object to the war and others are drafted and sent in their place, except the plaintiffs in this case are "objecting to objecting."

Mr. Paul Clement, one of the plaintiffs’ attorneys, responded that it was not simply a case of "objecting to objecting" and that "if there were, in fact, two forms, one was an opt-out form, one was an authorization form, my clients would have no objection to signing the opt-out form. They would very much have an objection to the authorization form."

Justice Ginsburg countered that "It’s not an authorization," but rather a requirement of the regulation. "You could say, 'I fill out the form. I do not authorize. I do not permit.' It won’t make any difference."

"[T]he government demands more than an objection," Clement continued, it requires the plaintiffs to give the name of their insurance company, and "then they [the government] are going to hijack our health plans and provide the coverage against our will."

Later during the government’s presentation, Solicitor General Donald Verrilli in response to a question from Justice Alito about self-insured plans, returned to this issue. He argued that there were two separate documents.

The first document is the form the employer provides the government. "The legal effect of that document is to exempt the employer from any obligation to provide contraceptive coverage," he said. "There is a second document that the government sends to the third party administrator. That document is the document that has a legal effect that creates the obligation on the part of the third-party to provide the coverage."

Thus the document the employer sends to the government is not a "permission slip," it does not authorize the insurance company to provide contraceptives. It only exempts the religious employer from providing the service. It is the government document sent to the insurance company that mandates coverage.

In short, Verrilli argued that the government did exactly what Clement said his clients wanted -- it provided two forms, one an opt-out form from the religious organization and a separate authorization form from the government. 

Eliminating the forum to which the petitioners object is key to the court's proposed solution. 

Mr. Noel Francisco, the plaintiffs’ second lawyer, made the most sweeping argument, that under the First Amendment and the Religious Freedom Restoration Act, all religious organizations, including universities, should get the same exemption that was provided to churches and integrated auxiliaries. There can be no distinctions.

To this, Justice Kennedy responded with his strongest statement against the plaintiffs, "It’s going to be very difficult for this Court to write an opinion which says that once you have [given an exemption to] a church organization, you have to treat a religious university the same. I just find that very difficult to write."

Justice Kagan agreed. There is "a very strong tradition in this country, which is that when it comes to religious exercise, churches are special."

"And if you're saying that every time Congress gives an exemption to churches and synagogues and mosques, that they have to open that up to all religious people, then the effect of that is that Congress just decides not to give an exemption at all."

She cited Professor Douglas Laycock’s brief on behalf of the Baptist Joint Committee for Religious Liberty in support of her argument.

Francisco denied that he was "suggesting that whenever you give an exemption to churches, that exemption has to apply to all other religious organizations" but he did not appear to convince the objecting justices.

In fact, his argument was even more sweeping, arguing that if the government was exempting any others, then it must exempt religious organizations. He pointed to exemptions in ACA for small businesses and for "grandfathered" plans, which are exempt until the plan is changed. These exemptions, he argued, prove that the government is not that serious about the issue.

Justice Sotomayor pointed out that "we exempt certain employers of certain size from Title VII, and it’s not because we don’t believe that racial discrimination is a bad thing."

Justice Kagan agreed. If every time the government provided a transition rule, "somebody could come in and say, well, the government must not really believe in this law because there is an exception to it," she said, then "we might as well pack it all in. There is not a law in town that doesn’t have exemptions like that."

Kagan summed up the problems she saw in the Francisco’s argument.

You would be saying to Congress, "Congress, next time you pass a law, don't put in an exemption for churches; you're going to get in real trouble doing that. Don't write transition rules that will help people adjust to a new legal regime; you're going to get in real trouble doing that. Don't write exemptions for small businesses, even though there are very particular concerns that small businesses face; you're going to get in trouble for that." Now, those are terrible incentives to give to a legislature, are they not?

Justice Breyer asked Francisco to imagine a government program filled with exemptions, some for good reasons, some for terrible reasons. If there is a small group of people who need an exemption for religious reasons, he asked, should they be exempt under the First Amendment or under the Religious Freedom Restoration Act?

"Yes," responded Francisco.

"I've just described to you the United States Tax Code where we know that you do not have to have an exemption for those who are religiously objecting, for example, to paying taxes because it would support a war."

Breyer did not buy Francisco’s argument, but said he was "trying to find the basis for the distinction between those things that we do require people to do despite their religious objection and those things that we don't."

Francisco responded that "the more distance you put between the petitioners on the one hand and the provision of the objectionable coverage to their employees on the other, the less problematic it is from their particular perspective."

Francisco was in fact articulating a classic principle of Catholic moral theology in dealing with material cooperation, and although none of the justices followed up on it during the oral argument, the court's suggested solution clearly puts more distance between the petitioners and the objectionable coverage. 

When the solicitor general, Donald Verrilli, made his presentation, the discussion again turned to the question of substantial burden. Justice Kennedy asked if he questioned the sincerity of the belief of the plaintiffs "that they are complicit in moral wrong."

And when he said no, Kennedy responded, "Well, then then it seems to me that that's a substantial burden."

This must have sent shivers through the government lawyers.

Kennedy seemed to be implying that all that was needed for "substantial burden" was for the plaintiffs to believe that the action was morally wrong. Kennedy appeared not to accept Sotomayor’s concern that everyone who comes before the court in a RFRA case believes that the government is making them complicit in moral wrong.

"And then and the next question," said Kennedy, "is whether there is an accommodation and whether that's the least restrictive."

Verrilli noted that the plaintiffs’ lawyers had presented various alternatives that the government might be able to use instead of the accommodation. "[T]here's a real problem with every single one of them in that every single one of them defeats the very purpose for which Congress imposed the preventive services requirement," he said.

The whole point of it, he argued, "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."

Requiring employees to sign up for separate programs, even if they were free, would be a barrier. Until they signed up, their doctor could not even discuss options with the patient. And after they sign up, their regular doctor might not accept the separate program and therefore the employee would have to go to another doctor. All of these barriers defeat the purpose of Congress in requiring preventive services, argued Verrilli.

"[I]n other words," said Chief Justice Roberts, "your compelling interest is not that women obtain the contraceptive services. Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third party administrator hired by the petitioners, hired by the Little Sisters."

Verrilli responded, that the point he was trying to make was "none of these options that the petitioners have identified -- going out on the Exchange and buying a separate individual policy, a contraceptive coverage only policy, Title X, Medicare, Medicaid-- with respect to every one of them, you'd have to change the law to make them even eligible here. But even if you could change the law, every single one of them creates the very problem that Congress was trying to solve in this provision because it would require setting up a one-off jerry-rigged separate channel to get contraceptive coverage."

The chief justice was not convinced. The phrase hijacking "seems to me that that's an accurate description of what the government wants to do," said Roberts. "They want to use the mechanism that the Little Sisters and the other petitioners have set up to provide services because they want the coverage to be seamless."

Roberts ended by giving the government a little bit of hope by saying, "maybe that's a sufficiently compelling government interest," but the plaintiffs "think that that complicity is sinful."

Verrilli responded that "it doesn’t constitute a substantial burden because of the way this accommodation is structured."

Justice Kennedy asked, are you "saying, don’t worry religions, you’re not complicit"?

"No," answered Verrilli. "[T]he judgment about complicity is up to you [the plaintiff], but that there is an objective limit that RFRA recognizes on the scope of what is a cognizable burden." In other words, the law not the plaintiff determines what is a substantial burden under RFRA.

Kennedy did not seem convinced and moved on to the question of whether or not there are less restrictive alternatives to the accommodation. Is this the least restrictive alternative as required by RFRA? Verrilli said it was.

Justice Alito asked why allowing women employees to obtain a contraceptive-only policy free on one of the exchanges would not be a less restrictive alternative.

Verrilli responded that it would create precisely "the problem Congress was trying to overcome in the preventive services provision."

He asked Alito to consider his alternative from the perspective of the woman employee. She has a health plan from her employer. She goes to her regular doctor who has to say, “Sorry, I can’t help you.” He can’t write the prescription or counsel the patient.

"She’d have to go out and buy the separate plan, find a doctor who is willing to take the separate plan," said Verrilli, assuming that there are insurance companies willing to sell these plans.

Justice Alito opined that insurance companies would supply the plans if they were subsidized at 115 percent. To which Verrilli responded, "But the whole point here is that Congress wanted to eliminate even what were perceived by most of the small barriers" such as copays, because medical experts said that even "small barriers work as a sufficient disincentive that many fewer people use contraception than would otherwise, and the barrier and the system that Your Honor is positing, imposes a significantly greater barrier."

Justice Sotomayor returned to the question of Justice Breyer about where to draw the line -- when does the government have to defer to a person’s religious beliefs and when does it not have to? She felt that because we live in a pluralistic society in which government has to operate, you cannot ask the government to change its behavior towards others because of your religious beliefs. That would be crossing the line.

She said, the plaintiffs "are asking is the government not to use its regulatory power with third parties who don't have a religious objection, and forcing a burden on the women who it’s trying to help, third parties that don't have the same religious objection, and burdening them to do other things."

Verrilli agreed, citing court cases Lyng v. Northwest Indian Cemetery Protective Association and Bowen v. Roy.

Chief Justice Roberts objected that this case was not about dealing with a third party but "hijacking" the petitioners' "process, their insurance company, their third-party administrator that they have hired and set up to provide these services."

Verrilli agreed to a limited extent, but the government "is trying to make an alternative arrangement that comes as close as we can to ensuring that the employees who may not share the petitioner’s religious beliefs get what the law entitles them to while at the same time ensuring that the employer does not have any legal obligation to pay for the coverage, to provide the coverage in any way."

"The employer cannot be charged," he continued. "The insurance company or third-party administrator has got to use separate segregated funds. It’s got to provide separate segregated notices. In many instances, it provides a separate insurance card to the employees for this part of the coverage. So in that respect, it is an independent arrangement with third parties."

"They are not third parties," the chief justice countered. "They are the insurance company that the petitioners have hired."

Roberts summed up the way he saw the case. On one side, the government wants coverage for contraceptive services to be provided seamlessly. "That is the compelling government interest."

On the other side, are "people who have sincere religious objections to being complicit in that through the hiring of the insurance company [or] the third-party administrator."

So the question for the chief justice is, "whether the government’s compelling interest outweighs those sincere religious objections."

Reading the court, especially Kennedy and Roberts, Verrilli said, "We would be content if the Court were to conclude that with respect to substantial burden, it could assume a substantial burden but that the government has satisfied its burden under RFRA to show a compelling interest, and that this is the least restricted means of achieving. ..."

At which point he was interrupted by Ginsburg asking if he was giving up on substantial burden. He answered no, but it was clear he would take a win anyway he could get it.

Breyer returned to his general question of how to determine what is a substantial burden and what is not.

"We are not urging you to state a comprehensive standard," responded Verrilli. "I think we’re urging a more incremental approach that recognizes that the principles articulated in Lyng and Bowen apply in a situation where the government is acting -- making arrangements with third parties in order to fill a regulatory gap that has been created by the government granting an exemption to a religious entity."

Verrilli continued to argue against Roberts’ assertion that the government was not dealing with a third party.

"Aetna is a different entity from petitioners," he said. "Blue Cross is a different entity from petitioners. The government makes its arrangements with Aetna or with Blue Cross, and we make arrangements with Aetna and with Blue Cross and other insurance companies and TPAs to provide contraceptive coverage to other third parties, the employees."

In response to a question from Justice Alito, Verrilli argued that the government was not hijacking the employer’s plan. "The government makes an arrangement with the insurance company that operates in parallel to that plan," he explained. "It isn’t through the plan. It’s parallel to that plan."

Justice Breyer chipped in, "This is not hijacking because there is a Federal regulation that says the infrastructure of the insurers’ contraceptive-related plan belongs to the insurer, not to the person who buys the insurance."

Justices Kennedy and Roberts did not appear to be convinced by these arguments and continued to refer to the government "hijacking" the employer’s plan.

The chief justice also asked about the anomaly that required compliance by the Catholic Charities of Pittsburgh, but totally exempts Catholic Charities of Erie. The regulation exempted churches and their integrated auxiliaries, but not other religious nonprofits.

Verrilli explained that when HHS decided that it would exempt churches, religious nonprofits came in and said, "The exemption ought to be extended to us."

"The government made a judgment that as a categorical matter, it wasn’t willing to extend the exemption to all religious nonprofits, as was requested, but it, instead, would use this accommodation."

Again citing Professor Laycock’s brief, he acknowledged, "no line is perfect, and I’m sure this line isn’t perfect, and there’s going to be some overlap between entities that maybe you think of, or look closer to being on one side of the line than the other."

But still, he argued, "It’s a valid line largely for the reasons Justice Kennedy identified earlier, because in that category of religious nonprofits may be some entities, like the one Your Honor has identified, that appear very close to entities that have an exemption. But there are going to be lots of other entities whose connection to that core religious mission is much more attenuated."

At which point, Chief Justice Roberts asked about the case of the Little Sisters of the Poor.

Verrilli practically stuttered in his response: "And so I -- I think we could, Your Honor, yes, under -- I think under -- I think we would -- it would be an appropriate accommodation, and I think if we had the same compelling interest, and we’d make the same narrowly tailored means argument."

If government had figured out how to exempt the Little Sisters of the Poor while including everyone else, the government’s case would have not been so controversial.

The problem is that the Little Sisters are not that little, and exempting them would lead to the exemption of scores of other nonprofits. The Little Sisters run 27 homes for needy elderly persons in the United States. One of the Sisters’ homes in the Bronx, for example, has 30 residents in the nursing unit and 17 residents in independent living apartments. 

Each home is run by "a team of dedicated staff members to provide the elderly with the care they deserve and to keep a home for the aged running smoothly." Most of these employees are women.

Chief Justice Roberts opined that it was simply a question of who had to do the paperwork, the employer or the employees.

Verrilli responded that it is not just about filling out paperwork, because if the exemption is granted, the women’s regular doctor has to say, "I cannot help you with that."

Roberts asked how RFRA would balance that interest against the interest of the employer in avoiding complicity.

Verrilli, of course, said that RFRA cuts, in this case, quite decisively in favor of the government because the government interest is compelling and none of the alternatives proposed come close to being equally effective in ensuring that women get this coverage but in fact provide serious obstacles in the way of coverage.

The rights of those employees who may not share the petitioner’s beliefs would be extinguished, he said, until Congress creates a "separate one-off jerry-rigged" program that will impose precisely the burdens Congress said are unacceptable for preventative services.

In summation, "RFRA requires a sensible balance," said Verrilli. "A sensible balance is essential in a pluralistic society like ours, in which people of every faith on earth live and work side by side, and the government has got to administer rules that are fair to everyone. The accommodation achieves that balance. Petitioners’ position is very, very far from that balance."

In his rebuttal, Clement focused on Kennedy and separated himself from the argument of his colleague Francisco. "I don’t think it’s the case that just because Congress exempts churches, that it has to exempt the universities."

What is needed, he argued is a rationale for drawing the line. "The line that they have drawn here is absurd," he said.

The line was based on the distinction between integrated auxiliaries and other religious nonprofits as laid out in section 6033 of the tax code. This section was enacted to distinguish between those religious organizations that are required to file annual information tax returns and those that are not. Religious institutions have lived with this law for decades, and each knows where it falls under the law.

The original justification for HHS using this line, he said, "was that the exempted organizations would be more likely to hire co-religionists and, therefore, less likely to have employees who would use the products." But he notes that his client is exempt from Title VII and has the right to only hire co-religionists, "so their original rationale applies equally to my clients. You have to draw a sensible line."

He concluded by saying, "My clients would love to be a conscientious objector, but the government insists that they be a conscientious collaborator. There is no such thing."

The court will give its decision later this year. If Kennedy and Roberts go with the petitioners, then the vote will be tied and the government will get its way in eight appeals court districts of the country where the plaintiffs will have to file the forum, but in one district the plaintiffs will not have to file the form. This result is clearly repugnant to the court, which led it to the unusual step of proposing a solution. 

The court's solution is to simply eliminate the form that the plaintiffs objected to filling out. If this is agreeable to both sides, the court appears to be willing to ignore the arguments about "hijacking" the plans and accept the government's argument that there is a "compelling government interest" and that these are "parallel" plans. 

It should be embarrassing to both the government and the religious organizations that it took the Supreme Court of the United States to come up with such a simple solution. Why could the parties not have found this obvious solution on their own?

In fact, Catholics sympathetic to the administration warned it that the form was a problem and suggested this very solution to the administration before it issued its regulations. But it appears that the lawyers representing both sides were more interested in fighting than in finding a solution. 

So far, some of the plaintiffs' lawyers appear to be supporting the court's proposal. Let's hope everyone gets on board so that this stupid dispute can finally be put to rest. 

For my earlier columns on this case, see

• Bishops' strategy endangering religious freedom, July 16, 2015
• Affordable Care Act's anti-abortion rules need to be enforced, Sept. 26, 2014
• What's next in the ongoing struggle between the bishops and Obama? July 25, 2014
• Supreme Court: accommodation, yes; Form 700, no, July 7, 2014
• Hobby Lobby wins, bishops lose in Supreme Court ruling, July 3, 2014
• In the Hobby Lobby case before the Supreme Court, law is not ethics, April 11, 2014

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org.]

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