The US Supreme Court appeared evenly divided over a challenge by Christian groups objecting to provide free birth control for their employees as required by President Barack Obama's healthcare law.
Justice Anthony Kennedy, who casts a closely watched swing vote in many cases, appeared to align himself with the other three conservatives on the bench in backing religious non-profit groups.
‘The Christian groups have asked the government to find a way that does not involve them or their insurers to provide birth control to women covered by their health plans.’
The court heard about 90 minutes of oral arguments over seven combined lawsuits, marking the fourth time in as many years that the highest court in the land has taken up a challenge to the law popularly known as Obamacare.
With late conservative Justice Antonin Scalia's death, and Senate Republicans' refusal to vote on a replacement until President Barack Obama leaves office next year, the court is now evenly split along ideological lines.
The four liberal justices were vocal in their criticism of the challenge to Obama's signature health care reform, the Affordable Care Act, and appeared to back his administration.
If the mandate is always perceived to be a substantial burden on religious groups, "how will we ever have a government that functions?" asked Justice Sonia Sotomayor, an Obama appointee.
Justice Ruth Bader Ginsburg concurred, stressing that "there has to be an accommodation, and that's what the government tried to do."
A 4-4 tie would leave lower court rulings in effect and put off for another year or more the resolution of an issue with major ramifications on women's lives.
The result would be further muddled by a tie because federal appeals courts handed down inconsistent rulings when they heard the cases -- all but one ruled for the Obama administration.
Benches and seats were packed in the cavernous courtroom, a sign of how closely the court's decision will be scrutinized in an election year in which repeal of Obamacare is a Republican battle cry.
In passing the law, Congress sought to address a nationwide problem, namely that women pay more than men for preventive care and therefore often do not seek such services.
The government says the mandate advances its compelling interest in protecting women's health.
Among the dozens of friend-of-the-court briefs filed in the case was one by 240 students, faculty and staff of religiously-affiliated universities pushing for women's access to birth control.
"Tens of millions of women nationwide depend on contraceptive coverage to prevent unintended pregnancies, treat serious medical problems, and ameliorate the resulting educational, professional, and medical harms," it said.
Groups Can Opt Out
Obamacare granted an exemption to houses of worship like churches, mosques and synagogues, but not to non-profit groups such as religiously-affiliated schools, colleges, hospitals or charities.
Those groups were instead given a way to opt out by notifying the government or their insurer in writing of their refusal to provide coverage.
The government then simply makes sure that employees or, in the case of religiously-affiliated schools, students can freely access contraception without involving the non-profit.
But some non-profits argue that this accommodation still burdens their free exercise of religion by making them complicit in providing contraception that is contrary to their beliefs.
They argue that the government instead should find alternative ways to provide contraceptives.
"It's a little rich for the government to say, 'This isn't your plan, don't worry about this, when their whole interest is put in terms of seamless coverage," said Paul Clement, representing a Roman Catholic women's institute known as the Little Sisters of the Poor.
"We are complicit in the coverage that's provided on our premises."
Clement accused the government of trying to "hijack" religious groups' health plans, a phrase then repeated by the conservative wing of the bench, including Kennedy and Chief Justice John Roberts.
Substantial Burden Test
When it agreed in November to hear the case, the Supreme Court denied part of the challenge to the Obamacare contraception mandate, narrowing its focus on whether the mandate violates the Religious Freedom Restoration Act.
Under the 1993 federal law, the government cannot "substantially burden" the free exercise of religion unless it is the least restrictive means to advance the government's interest.
In a landmark 2014 decision in a similar case, the Supreme Court ruled 5-4 that closely held, for-profit corporations can deny contraceptive coverage to employees for religious reasons.
A decision in the latest case, known as Zubik v. Burwell, is not expected until late June.