On March 23, the U.S. Supreme Court heard oral arguments in Zubik v. Burwell, more commonly know as the Little Sisters of the Poor case. Their lawsuit challenges the Affordable Care Act, specifically the provision that requires religious organizations’ insurance plans to cover contraceptives. In the case of religious institutions like “churches, synagogues and mosques,” the Department of Health and Human Services states, “Religious non-profits can opt out of the so-called contraceptive mandate simply by notifying the government of their objections.”
However, Constance Veit, the director of vocations for the Little Sisters of the Poor, says this is not the case. “In fact, the government has candidly told the Supreme Court that we ‘don’t get an exemption’ at all,” Veit says. “Rather, what Health and Human Services is calling an ‘opt-out’ is really an ‘opt-in’ — a permission slip where we authorize the use of our religious health plan to offer services that violate our beliefs and waive our protections under federal civil rights laws. That’s why they need our signature.”
The Sisters’ case comes after the 2014 Supreme Court Hobby Lobby case, where the court ruled that for-profit businesses whose owners objected to contraception on religious grounds did not have to provide birth control to employees. However, the decision did not apply to non-profits, which is why Zubik v. Burwell came before the Supreme Court. The court has already upheld the constitutionality of the Affordable Care Act twice, once in 2012 and again in 2015.
Now, the Supreme Court must decide if the Affordable Care Act violates the Religious Freedom Restoration Act of 1993, which says the government cannot “burden religious beliefs unless it has a compelling interest and uses the least restrictive means.” But so far every federal court of appeals, except in one case, have ruled in favor of the government.
The case is also significant because it is one of the first cases that the Supreme Court has heard since the death of Justice Antonin Scalia. Justice Scalia was a faithful Catholic and a good friend to the Little Sisters of the Poor. Many of the sisters even attended his funeral Mass at the Basilica of the National Shrine of the Immaculate Conception in Washington, D.C.
Viet described his death as “untimely from any perspective,” adding that, “We realize that things are more complicated now, without Justice Scalia.” The Supreme Court is now evenly divided between liberal and conservative justices. If the court were to come back with a 4-4 decision on Zubik v. Burwell, the ruling of the lower court of appeals would be upheld, a decision that would favor the Department of Health and Human Services.
The Supreme Court’s final ruling on this case may not come for months and if it is a split decision, some observers see it as a trend towards the rulings of courts of appeal as the law of the land. However, if the ruling of the court of appeals stands, the decision will not be used as precedent which would allow cases like this one to come before the Supreme Court in the years to come.