Supreme Court Split 4-4 On Contraceptive Mandate [Report]

The U.S. Supreme Court could be headed toward a 4-4 split regarding the Obamacare contraceptive mandate. The high court is hearing a legal challenge brought forth by Christian non-profit employers who summarily object to providing contraceptive coverage to their female employees as required by the Affordable Care Act. According to the case before the Supreme Court, these employers claim that being required to provide birth control to their employees violates their religious freedom.

On Wednesday, the court was evenly split, according to a CNBC report, with the four liberal Supreme Court justices supporting the Obama Administration and the four remaining conservative justices backing the “religious freedom” of the Christian employers who filed the suit. If the eight-person Supreme Court, which is down a justice following the death of Antonin Scalia and a Republican refusal to consider a replacement nominated by Obama, remains split 4-4, it would be bad news for the Christian employers involved in the case.

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If the Supreme Court justices can’t break their deadlock, lower-court rulings would be left in place. Those lower-court rulings have already rejected the claims of the Christian employers and organizations who oppose providing birth control coverage for their female employees based on their religious beliefs.

Justice Kennedy, often a deciding influence in close cases, has thrown his support in with his fellow conservative Supreme Court justices in the contraceptive case, siding in favor of the Christian employers who have challenged the contraceptive mandates. The majority of the challengers are Roman Catholic and include the Washington archdiocese.

According to the Christian employers involved in the suit, contraception is immoral. Additionally, they don’t believe that the government should force religious employers to choose between following the law and obeying the tenants of their respective faith. Their argument to the Supreme Court is that religious employers should get a complete exemption from the Obamacare contraceptive mandate, something that churches, mosques, and temples have already been given.

Justice Kennedy was quoted as saying that forcing religious employers to comply with the Obamacare birth control mandate would be forcing them into “subsidizing the conduct that they deemed immoral.”

The eight-justice Supreme Court heard roughly an hour and a half of arguments in the Zubik v. Burwell case on the sixth anniversary of the Affordable Care Act being signed into law.

The arguments heard by the Supreme Court this week were the result of seven consolidated cases, the focus of which was “whether nonprofit entities that oppose the requirement can object under a 1993 U.S. law called the Religious Freedom Restoration Act to a compromise measure offered by the government.”

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There have been repeated legal challenges to the law, the vast majority of which have been brought forth by conservatives and conservative groups. In both 2012 and 2015, the Supreme Court ruled in favor of leaving “Obamacare” intact, much to the chagrin of political conservatives and religious activists.

If the Supreme Court remains split 4-4, in addition to leaving previous lower-court rulings intact, it would also fail to set a national legal precedent regarding further claims of the same nature. This could allow further challenges in some areas of the nation based on the previous rulings of local lower-courts.

Alternatively, the evenly-numbered and evenly-split Supreme Court could simply order that the case should be reargued, perhaps at such a time as the court’s justices once again number nine.

In 2013, the Obama Administration offered a compromise to Christian groups and other religious employers in order to stem the plethora of legal challenges to the Affordable Care Act’s contraceptive mandate. In that compromise, groups religiously opposed to paying for their female employee’s contraceptive coverage were given the opportunity to comply with the mandate by simply providing contraceptive coverage without actually paying for it. In such cases, religiously-affiliated employers with a moral objection to providing contraception to their female employees must submit a form to the government, and insurers pay for the birth control as opposed to the employers.


The religious employers involved in this week’s Supreme Court case have thus far been unwilling to compromise, saying that the accommodation is still a violation of their religious freedoms, further arguing that simply forcing them to authorize contraceptive coverage for their female employees is immoral, even if they’re not footing the bill.

The Supreme Court justices must decide if the federal government’s argument that it has a “compelling interest” when it comes to protecting the health of female workers (including ensuring access to birth control) is more substantive than the argument of religious challengers that the government is imposing a “substantial burden” on their religious freedom, and that the waivers offered do not relieve that burden.

A decision is from the 4-4 split Supreme Court is expected by the end of June.

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