imagesjusMarch 23, 2016
The US Supreme Court appeared to be evenly divided during oral arguments in Zubik v. Burwell, a key challenge to the contraceptive mandate in the “Obamacare” health reform.

Four of the eight Supreme Court justices seemed to accept the Obama administration’s argument that the mandate allows sufficient protection for institutions that find abortion and contraception morally repugnant, while the other four justices appeared to reject those arguments. Justice Anthony Kennedy, generally regarded as the critical “swing” vote, observed that the Obama administration is “hijacking” insurance plans, forcing the controversial coverage, rather than making an attempt to accommodate religious beliefs.

Since the death of Justice Antonin Scalia leaves the Court with an even number of voting justices, a 4-4 deadlock seems likely. That result would leave in place the lower court decisions, which have produced different results in different federal circuits. Inevitably the issue would eventually rise before the Supreme Court again.

The Little Sisters of the Poor– the religious order (incorrectly identified as a “charity” in a Washington Post story) that was the most visible of many Catholic institutions joining in today’s legal challenge—issued a statement after the oral arguments, saying that they were “hopeful for a positive outcome.” The statement expressed incomprehension at the Obama administration’s determination to force the issue:

We don’t understand why the government is doing this when there is an easy solution that doesn’t involve us—it can provide these services on the exchanges. It’s also hard to understand why the government is doing this when 1/3 of all Americans aren’t even covered by this mandate, and large corporations like Exxon, Visa, and Pepsi are fully exempt, yet the government threatens us with fines of 70 million dollars per year if we don’t comply.

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