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Supreme Court Seems Split After Oral Arguments In Contraception Case

Justice Anthony Kennedy -- seen as the possible swing vote in the challenge on the health law's contraception mandate case -- asked whether the accommodation is making the groups "complicit in a moral wrong" by hijacking their insurance plans.

The New York Times: Justices Seem Split In Case On Birth Control Mandate
The Supreme Court weighed moral theology and parsed insurance terminology on Wednesday in an extended and animated argument that seemed to leave the justices sharply divided over what the government may do to require employers to provide free insurance coverage for contraception to female workers. A 4-to-4 tie appeared to be a real possibility, which would automatically affirm the four appeals court decisions under review. All four ruled that religious groups seeking to opt out of the requirement that they pay for the coverage must sign forms and provide information that would shift the cost to insurance companies and the government. (Liptak, 3/23)

Reuters: Supreme Court Faces 4-4 Split In Obamacare Contraception Case
Justice Anthony Kennedy, who often casts the deciding vote in close cases, appeared more aligned with the court's three other conservatives in favoring the challengers, which primarily were Roman Catholic including the archdiocese of Washington. The Christian employers call contraception immoral and argue that the government should not compel religious believers to choose between following their faith and following the law. They argue they should get the complete exemption from the mandate already given to places of worship such as churches, mosques and temples. (Hurley, 3/23)

The Wall Street Journal: Supreme Court Could Split In Contraceptive Case
The court’s four liberal members appeared convinced the government’s compromise met its legal obligation to accommodate religious objectors to the law. The more conservative justices sharply questioned why the government could relieve other employers of the contraceptive requirement—such as houses of worship, or companies using older, “grandfathered” plans—while denying identical treatment to the religious nonprofits. That appeared to leave the decision to Justice Anthony Kennedy, who early on in the argument recognized the practical difficulties of the challengers’ position, yet later suggested he strongly empathized with their moral imperatives. (Bravin and Radnofsky, 3/23)

Politico: Divided Supreme Court Hears Obamacare Birth Control Challenge
A sharply divided Supreme Court on Wednesday considered whether Obamacare's birth control coverage requirement violated the rights of religious institutions, with Justice Anthony Kennedy — the likely swing vote — voicing concern about how big a loophole the court might create if it rules for the challengers. Kennedy suggested that large institutions like Catholic universities shouldn't be able to get out of the employee coverage requirement in the same way that other challengers, such as the Little Sisters of the Poor order of Catholic nuns, perhaps should. (Haberkorn and Gerstein, 3/23)

Modern Healthcare: Supreme Court Appears Divided On ACA Contraception Case
Despite the questioning, Leila Abolfazli, senior counsel with the National Women's Law Center, which filed a brief in the case siding with the government, said she believes it still has a chance of winning the case. She pointed to Kennedy's writings in the previous Hobby Lobby case from 2014. ... Kennedy wrote a concurring opinion in that case agreeing that part of the reason to rule in favor of Hobby Lobby was because there were less restrictive ways to make sure its employees got birth control coverage than by forcing Hobby Lobby to provide it directly—such as the accommodation afforded to religious not-for-profits. (Schencker, 3/23)

Los Angeles Times: In Religious Liberty Vs. Obamacare Contraceptives, Supreme Court Appears Deadlocked
The court's liberals, led by its female justices, said the Obama administration had found a fair way to shield the employers from providing or paying for the contraceptives. “As in all things, it can’t be all my way,” Justice Ruth Bader Ginsburg said. “There has to be an accommodation, and that’s what the government tried to do.” Justice Elena Kagan said she could not understand how the Catholic charities could refuse to even notify the government they would not provide contraceptive coverage to their employees. You “object to objecting,” she said. (Savage, 3/23)

The Washington Post: Court Appears Divided On Contraceptive Coverage, With Kennedy Raising Concern
The hearing provided a vivid illustration of the difficulty the court — without Justice Antonin Scalia, who died last month — might have putting together the necessary five-member majority to decide its most important cases. In this case, it would mean the national law that has transformed health-care coverage would be implemented differently depending on where the organization and its employees are located. An inability to decide the case would mean the lower courts’ decisions would remain in place. The mandate has been upheld by eight of the nation’s regional appeals courts that have decided the issue and overturned in one. (Barnes, 3/23)

The Associated Press: Justices Divided Over New Challenge To Health Care Law
Contraception is among a range of preventive services that must be provided at no extra charge under the health care law. The administration pointed to research showing that the high cost of some methods of contraception discourages women from using them. A very effective means of birth control, the intrauterine device, can cost up to $1,000. Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the birth control requirement. Other faith-affiliated groups that oppose some or all contraception have to tell the government or their insurers that they object. (Sherman, 3/23)

Fox News: Supreme Court Divided On ObamaCare Contraception Mandate
Members of the Little Sisters of the Poor rallied along with their supporters in front of the court Wednesday, many carrying signs and buttons with "I'll Have Nun of It." Nearby were supporters of abortion rights and the Affordable Care Act. While the LSP leaders are nuns, the charity employs hundreds of lay workers who otherwise may be eligible for the insurance service. Similar non-profits would include certain hospitals, parochial schools, and private faith-based universities. (Mears, 3/23)

USA Today: Supreme Court Deeply Divided Over Religious Freedom, Reproductive Rights
This was the fourth time before the court for Obama's prized Affordable Care Act, and it came on the sixth anniversary of the law going into effect. While it suffered a setback in a 2014 case over the so-called "contraceptive mandate" as applied to certain for-profit businesses, it has survived two major challenges to its broader insurance requirements and subsidies. (Wolf, 3/23)

Kaiser Health News: Supreme Court Takes Up Birth Control Access — Again
A new poll by the Kaiser Family Foundation finds that more than a third of those surveyed (and 40 percent of women) said there is “a wide-scale effort to limit women’s reproductive health choices and services.” (Kaiser Health News is an editorially independent program of the foundation.) Not surprisingly, Democratic women were more likely to say there is a wide-scale effort than Republican women (56 percent v 25 percent) and far more likely to say that they are “personally concerned” about women’s reproductive health choices (52 percent v 18 percent). (Rovner, 3/23)

ProPublica: What's At Stake In The Latest Supreme Court Showdown Over Contraception And Religious Freedom
Legal analysts have called the case Hobby Lobby Part 2, and like that landmark 2014 ruling by the high court, Zubik has implications far beyond the realm of reproductive health care. ... A ruling in favor of the religious nonprofits would not only undermine key provisions of the ACA, but it could lead to challenges to laws meant to protect gays and lesbians from discrimination, [Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center] said. (Smith and Martin, 3/23)

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