This case — Zubik v. Burwell — consolidates seven separate cases in which the challengers claim the ACA’s contraceptive mandate violates their religious freedom. The main issue in the case is whether the mandate, which requires employer-sponsored health plans to cover contraceptives, and its accommodation violate Religious Freedom Restoration Act of 1993.
Under the accommodation, nonprofits that object to covering contraceptives can notify their insurer, which will then pay for the contraceptives.
On Wednesday, Justice Anthony Kennedy, who is often the swing vote in divisive cases, seemed to side with conservatives on an important point in the case. He seemed to accept the challengers’ view that the accommodation is a substantial burden. However, it is still unclear where Justice Kennedy stands on the issues, according to The Hill.
Conservative justices raised the possibility of creating a separate health insurance plan that would be sold on the ACA exchanges and only cover contraception.
Solicitor General Donald Verrilli raised several concerns with a contraceptive-only health plan. He argued it might not be within the administration’s legal authority to provide that type of coverage on the exchanges, according to the report.
The liberal justices emphasized the importance of striking a balance between religious liberty and allowing employees access to contraception.
“There has to be an accommodation, and that’s what the government tried to do,” said Justice Ruth Bader Ginsburg, according to the report.
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