Earlier this month, conservative justices on the Supreme Court expressed doubt that state laws that would result in the closing of abortion clinics across the state of Texas would impose a substantial burden on women’s access to abortion. Today, when the Supreme Court heard oral argument in Zubik v. Burwell, the same conservatives took a vastly different view of the substantial burden test, repeatedly criticizing the religious accommodation offered by the government as a basic affront to principles of religious liberty. The requirement that religiously affiliated employers fill out a form to opt out of the contraceptive coverage requirement of the Affordable Care Act, Chief Justice John Roberts and others complained, “hijacked” the employers’ insurance plans without any good reason. If there were any constant in the two cases, it was the Court’s conservative bloc’s blithe disregard of women’s rights to liberty and equal dignity. 

Our Constitution and laws place the highest of values on religious liberty, recognizing the right to practice one’s religion as critical to freedom, dignity, and self-definition. But the Affordable Care Act has already accommodated the beliefs of those who have a religious objection to contraception. Two years ago, in Burwell v. Hobby Lobby Stores—the Court’s first effort to balance religious liberty with the right of women to full and equal health care coverage guaranteed by the law—the Court viewed the religious accommodation as the key to reconciling the rights of employers, employees, and the government. But, in today’s argument, the Court’s conservative wing seemed willing to accept the far-reaching claim that religiously affiliated employers are substantially burdened by the requirement that they fill out a form to take advantage of such an accommodation. Opting out would transfer the duty to provide such coverage to insurance companies.

Indeed, Justice Anthony Kennedy—the key swing vote—even went so far as to press Solicitor General Don Verrilli to concede that the ACA regulations that allow religious employers to opt out was a substantial burden on the free exercise of religion.

The key point that Kennedy and the Court’s other conservatives kept coming back to was that the government was “hijacking” the insurance plans created by religious employers, and using them to provide contraceptive coverage. As Chief Justice Roberts put it, the government “want[s] to use the mechanism that the Little Sisters and other petitioners have set up to provide services because they want coverage to be seamless.” The Court’s conservatives seemed to think that the opt-out intruded on religious liberty, deferring to the claim that even such an attenuated form of participation involved complicity with sin.  

The Court’s liberal justices repeatedly pushed back on this sweeping new understanding of what constitutes a substantial burden on the free exercise of religion. Early in the argument, Justice Sonia Sotomayor pressed Paul Clement, the super-star advocate who was representing the Little Sisters of the Poor and other employers attacking the religious accommodation, to explain how the employers’ claim could be squared with the treatment of “conscientious objectors during the war,” who were required to do much more than fill out a form. As Sotomayor explained, the law requires those opposed to war to register for the draft—on pain of criminal penalties—in order to claim conscientious objector status, which of course “would mean other people would have to serve in their lieu.” If “you’re a military objector,” you “can’t tell the government, no, you can’t draft someone else.” That’s basically the same way the ACA’s religious accommodation works: It accommodates religious objectors by shifting their obligations to third parties who do not share that objection. As Sotomayor argued, “It is not a substantial burden if someone else is going to do the act that you’re objecting to.”

Justice Elena Kagan, too, asked Clement to explain his far-reaching claim that “the sincere religious belief is what controls” the substantial burden inquiry. Clement’s theory, Kagan argued, had no limiting principle. Every burden on a sincerely held belief would amount to a substantial burden. This would effectively write the “substantial burden” language out of the Religious Freedom Restoration Act, eliminating a key requirement Congress insisted on. As Sotomayor remarked, “When will any government law that someone claims burdens their practice ever be insubstantial?” Further, as Justice Stephen Breyer suggested, the “hijacking” claim was factually incorrect since, under federal law, “the infrastructure of the insurers’ contraceptive-related plan belongs to the insurer, not to the person who buys the insurance.”

The justices also debated the question of whether the government had met its burden of showing that there was no less restrictive alternative to fulfill the government’s compelling interests in ensuring full and equal health care coverage to women, including access to the full range of contraceptives. The crucial question, Justice Kennedy suggested, was whether “it’s necessary to hijack the plans.” How Kennedy answers this question will determine if the justices give the government a narrow win or if the Court splits 4-4.

In the case of a split vote, lower court rulings rejecting the challenges to the law would stand, but no precedent would be set. However, the Eighth Circuit’s ruling in favor of the challengers, which was not before the Court today, would also stand, which means a division among lower courts would remain unresolved.

A number of conservative justices suggested the government could simply have women seek insurance coverage on the ACA health care exchanges that covered contraceptive care and nothing else—a form of insurance coverage that has never been offered before. Chief Justice Roberts suggested that the case turned on “who has to do the paperwork”: the religious group or the woman, who (in his factually incorrect view) could simply apply for contraceptive coverage on the exchange. Justice Samuel Alito, too, made similar suggestions. But, as Solicitor General Verrilli made clear, that coverage—currently not available anywhere—would simply impose the same kind of obstacles on women’s access to contraceptive coverage that the ACA was meant to prevent. As Verrilli explained, “The whole idea here is to ensure that these employees get the health care without these added obstacles and the need to go out and sign up for another plan and then find the doctors who are going to provide coverage under that plan.” Further, as Justice Sotomayor emphasized, the ACA does not permit contraceptives-only policies, so it’s “a falsehood” that these policies are actually available to women. 

The Court’s conservatives, however, seemed to want to make RFRA scrutiny so strict that not all women would have the right to full and equal contraceptive coverage that the Affordable Care Act sought to guarantee. As Verrilli emphasized, religious liberty should not give employers a license to extinguish the rights of their employees.