TX Birth Control Decision goes to Supreme Court Today: The Religious Exemption

http://thinkprogress.org/justice/2016/03/23/3762765/the-supreme-court-flirts-with-chaos-at-todays-birth-control-argument/

Alito focuses on the later of these two opinions, in a series of questions for Verrilli that can fairly be described as combative and nasty. At one point, Alito demands to know how the government can claim that Obamacare’s exchanges are “so unworkable” that they cannot provide an alternative for women that need birth control-only plans. It’s the sort of remark that seems more at home on Fox News than in the Supreme Court of the United States, and its delivered in a tone that seems to betray Alito’s bitterness over the fact that he has twice tried and failed to gut Obamacare by judicial decree.

In response, Verrilli argues that offering birth control-only coverage in the exchanges would not be a workable solution. For one thing, it’s not currently legal to sell such single-subject plans in the exchanges. For another, it’s far from clear that any private insurer would agree to offer such a plan. And even if they did, there’s no guarantee that a woman would be able to buy a plan that included the same doctors she relies upon for other medical care. This could lead to a world where a woman’s regular physician would be unable to prescribe contraception or even counsel the woman on many issues related to her reproductive health. And it would add an additional layer of complication that would discourage many women from seeking out contraceptive care.

Roberts, meanwhile, embraces the religious objectors’ argument that the government is “hijacking employers'” health plans via its fill-out-the-form regulation. This proves to be a very effective argument for Roberts, largely because it appears to sway Kennedy near the end of Verrilli’s time at the podium. In response to Verrilli’s attempt to explain some of the details of how the fill-out-the-form rules operate, Kennedy snaps back “that’s why it’s necessary to hijack the plans!”

In contentious cases, Kennedy often appears to play the role of Hamlet, asking questions of both sides and giving off an air of uncertainty about how he will ultimately vote. But when Kennedy shows real emotion in one of his questions, or when he adopts the loaded language of one of the parties, that’s normally a good sign that he’s made up his mind. When the votes are cast and the Court’s decision is released, it’s a good bet that Kennedy will vote against Team Birth Control.

Confusion

In the short term, that could create a fair amount of uncertainty for women who work for multi-state employers. Ordinarily, when the Supreme Court splits 4-4, lower court orders stand. Currently most federal appeals courts agree with the government that its fill-out-the-form rules are lawful, but the Eighth Circuit, which oversees federal suits in Arkansas, Iowa, Minnesota, Missouri, Nebraska and the Dakotas, sided with religious objectors. Thus, if the Court ultimately hands down a 4-4 decision, a woman who moves from Texas (where the conservative Fifth Circuit upheld the fill-out-the-form rules) to Arkansas could lose her right to birth control coverage.

Worse, such a result could create a great deal of confusion for large employers that could potentially be subject to one court order in one state requiring them to fill out the form, and another court order in another state providing that they do not have to do so. Without a Supreme Court majority to resolve this conflict, it is not entirely clear what that employer should do.

Ultimately, however, it is likely that someone — whether it is Supreme Court nominee Merrick Garland or someone else — will be confirmed to fill Scalia’s seat. If that new justice is inclined to agree with the conservatives, that could lead to far more uncertainty about when our laws even apply. At one point during the oral argument, Justice Breyer rattled off a long list of difficult cases that could arise if the Zubik plaintiffs prevail. What of Quakers who refuse to let their taxes go to fund a war? Or a city employee who refuses to shovel the sidewalk in front of an abortion clinic for fear that it will make it easier for women to obtain abortions? Justice Elena Kagan asks an even more basic question: what if someone objects even to informing the government that they have an objection to following a law, yet demands the right to be exempt from it anyway?

In his final seconds at the podium, Verrilli concludes his argument with an appeal to these concerns. “A sensible balance” between the rights of religious objectors and a society’s need for self-governance “is essential in a pluralistic society like ours.”

After Wednesday’s argument, however, it appears that there are only four justices who share Verrilli’s concern about this case.