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Supreme Court appears divided during oral arguments over contraception mandate
The Supreme Court's eight current justices heard oral arguments for Zubik v. Burwell on Wednesday, March 23. - photo by Kelsey Dallas
A tie appears likely in the latest challenge to the Affordable Care Act's contraception mandate to reach the Supreme Court, according to observers of Wednesday's hearing over a case that pits religious nonprofits against the government.

"The justices split along familiar lines, with liberals skeptical of the religious groups' claims and conservatives empathetic," USA Today reported.

In the case, the plaintiffs, including faith-based charities, hospitals and schools, argue that the accommodation offered to nonprofits who object to Obamacare's contraception mandate is not enough. They say the process still implicates them in the provision of birth control coverage and violates the Religious Freedom Restoration Act.

"We don't understand why the government is doing this when there is an easy solution that doesn't involve us it can provide these services on the exchanges," said Sister Loraine Marie Maguire, mother provincial for the Little Sisters of the Poor, one of the plaintiffs, in a press release distributed after oral arguments.

Lawyers for religiously affiliated nonprofits argued their clients should be granted the same ACA exemption offered to houses of worship or, if that's not possible, be completely separated from the process by which their employees receive birth control. Currently, the accommodation requires these groups to notify the government of their objection, at which point the government works with the employer's insurance provider to arrange coverage.

The Supreme Court must decide whether this accommodation poses a substantial burden on religiously affiliated nonprofits and determine if there are other less restrictive ways for the government to ensure that employees receive contraception coverage.

"The court's four liberals were supportive of the Obama administration's position that it has offered an acceptable accommodation for such organizations that respects their beliefs and ensures that women receive the coverage they are entitled to under the law," The Washington Post reported. "But the justice who could provide a fifth vote for such a ruling, Justice Anthony M. Kennedy, expressed doubts."

Kennedy said "it sounded like the challengers were right in their allegation that the government was 'hijacking' their insurance plans to provide contraceptive coverage," the article noted.

Justice Elena Kagan, echoing judges who have sided in favor of the government at the circuit court level, said the plaintiffs were "objecting to objecting," noting that RFRA protections shouldn't stretch that far, the Post reported.

Most observers have been predicting a 4-4 tie between the Supreme Court's more liberal and more conservative camps since the death of Justice Antonin Scalia in February, as Deseret News National reported in its Zubik v. Burwell overview. The remaining eight justices will hand down their decision in June.

A tie would uphold lower court rulings, all but one of which went in favor of the government. The 8th Circuit Court of Appeals, which presides over Arkansas, Minnesota, Nebraska, the Dakotas, Iowa, Missouri and Arkansas, ruled in favor of religiously affiliated nonprofits.

"The justices could also call for the case to be reargued when the court has its full nine members. But no one knows when that will be," the Post reported.
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