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The death of Justice Antonin Scalia has left the Supreme Court with an even number of members. Today there, were signs that they may be headed for their first messy 4 to 4 tie in a major case. It's one that could affect millions of Americans women's access to birth control. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Under the Affordable Care Act, houses of worship like churches, mosques and synagogues are automatically exempt from providing birth control coverage for their employees, but religious nonprofits ranging from large universities to small service organizations must notify either the government or the insurer if they wish to opt out on religious grounds - opt out from providing mandatory birth control coverage.
They contend that their religious rights are violated by signing a letter or one-page form because doing so triggers the government stepping in to work out with the insurer, like Blue Cross Blue Shield, separate, free birth control coverage for those employees or students who may want it.
On the steps of the Supreme Court today, Sister Lorraine Maguire of the Little Sisters of the Poor, an order that runs homes for the elderly, explained why the group is part of the suit.
LORRAINE MAGUIRE: The government is requiring us to make changes in our religious health care plan to include services that really violate our deepest-held religious beliefs.
TOTENBERG: But Brent Walker of the Joint Baptist Committee disagreed.
BRENT WALKER: Saying no thank you and allowing the government to deal with the secular insurance company simply does not amount to a substantial burden on the exercise of religion.
TOTENBERG: Inside the courtroom, it appeared there was a clear conservative-liberal split with Chief Justice Roberts, Justice Alito and, presumably, Justice Thomas fiercely objecting to the accommodation and the court's three female justices and Justice Breyer just as fiercely suggesting that the law reasonably accommodates religious nonprofits in order to provide a service deemed necessary for female health. That left the deciding vote with Justice Kennedy. If he sides with the conservatives, there would be a 4 to 4 tie. If he votes the other way, the vote would be 5 to 3 to uphold the opt-out provision.
Kennedy sent mixed signals throughout the argument, at first appearing skeptical of the challenger's position but then joining Chief Justice Roberts in proclaiming that the opt-out requirement allows the government to hijack the health insurance plans of religious objectors. Lawyer Paul Clement, representing some of the religious nonprofits, faced a barrage of questions as he opened the argument. Justice Sotomayor noted that the government requires those who object to serving in the Armed Forces to register as conscientious objectors. Clement replied that what the government is doing in this case is asking his clients to become not conscientious objectors but conscientious collaborators.
Justice Ginsburg noted that the insurer here is an independent contractor, and once a religious objector ops out, the insurer or the third-party administrator is not dealing with the employer at all. The company has an independent obligation to provide separate birth control coverage.
The questioning continued with lawyer Noel Francisco, also representing religious objectors. Responding to Justice Ginsburg, he asserted that the law should treat religious nonprofits the same way it treats churches and other houses of worship - a total exemption without any necessity to notify the government or the insurer.
Justice Kennedy - the same with a religiously affiliated University - answer - yes. Justice Kennedy - it's going to be very difficult for this court to write an opinion which says that once you have a church organization, you have to treat a religious university the same way.
Justice Kagan - I thought there was a very strong tradition in this country which is that when it comes to religion, churches are special; and if you're saying that every time Congress gives an exemption to churches and synagogues and mosques they have to open that up to all religious people, the effect will be that Congress will not give an exemption to anyone.
Justice Breyer - let's imagine widespread government program filled with exemptions. Some of them have good reasons, some of them - terrible reasons. Are you saying that under the Religious Freedom Restoration Act if a smaller religious group wants an exemption, too, Congress has to give it to them - because I've just described a tax code, and there's no exemption for religious objectors.
If the challengers had a tough time today, Solicitor General Donald Verrilli defending the opt-out provision faced just as tough an onslaught. The Chief Justice Alito and Kennedy all suggested there might be alternatives to the opt-out law that are less onerous for the objectors. Make a separate birth control plan available on state exchanges, for instance. Verrilli said that even if such a plan existed - which it doesn't - it would put the onus on the woman to seek out and sign up for a second insurance plan, a plan that well might not be accepted by her doctors in her employer plan.
Chief Justice Roberts - but the challengers say you're hijacking their insurance plan, and that seems right to me. Answer - we're making an alternative arrangement that the employer doesn't have to pay for or authorize or participate in.
Chief Justice Roberts - so it comes down to paperwork. If it's the employee that has to do it, it's no good, and if it's the religious organization, that's OK. Justice Kennedy - that's why it's necessary to hijack the plans?
If Kennedy's tone reflected his views, the court looks like it's tied 4 to 4. And what that would mean is that in most of the country where the lower courts have upheld the opt-out provision, it would stand for now.
But in a small number of states where the lower courts have struck down the opt-out provision, women working for religious organizations or students attending religious schools would not have any access to birth control coverage. At the Supreme Court, only the confirmation and vote of a new justice would resolve the issue. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.