This morning the U.S. Supreme Court hears oral arguments in Zubik v. Burwell and six other cases consolidated for argument with it. (Hearing List.) The cases all involve challenges to the Obama Administration's Affordable Care Act accommodation for religious non-profits. Religious non-profits that object to including coverage for contraceptive services in their employee health plans may opt out in favor of coverage that is furnished instead directly by the organization's insurer or third-party administrator. Although there is a split among circuits on the issue, all of the cases being argued today involve appeals court decisions upholding the mandate. The cases raise fundamental issues of interpretation and application of the Religious Freedom Restoration Act.
The Court has allotted 90 minutes for oral argument of the consolidated cases. Argument time for the religious non-profits will be divided between former Solicitor General Paul D. Clement and Jones Day partner Noel J. Francisco. Arguing for the government will be U.S. Solicitor General Donald B. Verrilli, Jr. The SCOTUSblog case page furnishes links to the dozens of briefs from parties and amici that have been filed, as well as links to extensive commentary on the cases. A transcript of the oral arguments should be available later in the day from the Supreme Court's website.
While the arguments are taking place, outside the Supreme Court building a rally is planned by Little Sisters of the Poor, the non-profit that has been the face of the challengers on social media and in an op-ed last week in the New York Times. Planners say that hundreds of religious women, college students, and clergy will participate. An op-ed in Sunday's Washington Post by Prof. Douglas Laycock counters the arguments by Little Sisters.
With the recent death of Justice Scalia, it is possible that the Court could split 4-4 in the case, which would result in affirmance of the Circuit Court decisions. The first such 4-4 affirmance was published today in a case involving interpretation of the Equal Credit Opportunity Act.