The Supreme Court on Wednesday weighed moral theology and parsed insurance terminology in an unusual argument that seemed to leave the justices sharply divided over what the government may do to provide free insurance coverage for contraception to female workers. A 4-4 tie appeared to be a real possibility.
The case concerned a regulation requiring many employers to provide the coverage under the Affordable Care Act. Religious institutions like schools and churches have said that forcing them to comply with that requirement violates a federal law protecting religious freedom.
They also objected to an alternative the government offered that would allow them to opt out of the requirement by signing forms and providing information that would shift the cost of the coverage to insurance companies and the government.
The court's four more liberal members appeared ready to endorse that alternative.
"There has to be an accommodation," Justice Ruth Bader Ginsburg said. "And that's what the government tried to do."
But it did not appear likely that the liberal justices would be able to attract the crucial vote of Justice Anthony M. Kennedy, who repeatedly questioned whether the accommodation was making the groups "complicit in a moral wrong" by hijacking their insurance plans.
Though Justice Clarence Thomas asked no questions, there was little doubt about where the three more conservative justices stood. Justice Samuel A. Alito Jr., for instance, citing arguments in supporting briefs, said the government's approach represented "an unprecedented threat to religious liberty in this country."
In 2014, Justice Antonin Scalia was part of a 5-4 majority that voted to limit the mandate, and his death last month raises the possibility of a tie vote in the new case that would leave in place conflicting appeals court decisions and a national legal patchwork.
Wednesday's case, Zubik v. Burwell, No. 14-1418, is the court's fourth encounter with President Barack Obama's health care law. It builds on the one argued in 2014, Burwell v. Hobby Lobby Stores, which said that requiring family-owned corporations to pay for contraception coverage violated the Religious Freedom Restoration Act of 1993.
Alito, writing for the majority in that case, said there was a better alternative to the mandate, one that the government had offered to nonprofit groups with religious objections. That alternative, which is at issue in the new case, allows nonprofit groups like schools and hospitals that are affiliated with religious organizations to avoid fines if they inform their insurers, plan administrators or the government that they seek an exemption from the coverage requirement.
Alito wrote approvingly of the accommodation, which shifts contraceptive costs to others, calling it "an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs." But he did not say the accommodation was lawful.
Many religious groups around the nation have challenged the accommodation, saying that providing the required information that would allow insurance companies or the government to provide the coverage makes them complicit in conduct that violates their faith.
The groups add that they should be entitled to the outright exemption offered to houses of worship like churches, temples and mosques. Houses of worship do not have to file any paperwork if they choose not to provide contraception coverage.
Many other employers are also effectively exempt from the contraception requirement. Small employers need not offer health coverage, and some insurance plans that had not previously included contraception coverage are grandfathered, so long as they do not make substantial changes to the plans.
Among the religious groups challenging the accommodation is an order of nuns based in Baltimore called the Little Sisters of the Poor, which operates nursing homes around the country. The order objects to playing any role in providing any of the forms of contraception approved for women by the Food and Drug Administration.
Other challengers object only to covering intrauterine devices and so-called morning-after pills, saying they are akin to abortion. Many scientists disagree.
The court will consider the groups' objections under the Religious Freedom Restoration Act. The law says that government requirements placing a substantial burden on religious practices are subject to an exceptionally demanding standard of judicial scrutiny.
The two sides differ about whether the accommodation is such a burden. The religious groups say that following their faith would subject them to crushing fines in the tens of millions of dollars.
"The government wants petitioners to do precisely what their sincere religious beliefs forbid — and it is threatening them with draconian penalties unless they do so," Paul D. Clement, a lawyer for several religious groups, told the justices in a brief.
Solicitor General Donald B. Verrilli Jr., in a brief for the Obama administration, said, "We do not question the sincerity or importance of petitioners' religious beliefs." But, he added, "a sincere objection to opting out of a legal requirement based on the knowledge that the government will then arrange for others to fulfill the requirement does not establish a substantial burden."
If the court disagrees and finds that the accommodation does impose a substantial burden, the government must show that the accommodation is "the least restrictive means of furthering" a "compelling governmental interest."
Many federal appeals courts have ruled for the government in challenges to the accommodation. In 2014, for instance, Judge Cornelia T.L. Pillard, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, ruled against the challengers at every step of the analysis.
The accommodation did not impose a substantial burden, Pillard wrote. "All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form," she wrote. "That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state."
She added that providing contraception coverage was a compelling interest, a point that the Supreme Court had assumed in the Hobby Lobby case. "The accommodation requires as little as it can from the objectors," she added, "while still serving the government's compelling interests."
A three-judge panel of the 8th Circuit, in St. Louis, disagreed. Ruling at a preliminary stage of the case, it said the fines that the challengers faced if they followed their faith were a substantial burden under the 1993 law.
Judge Roger L. Wollman, writing for the court, assumed that the government's interest was compelling. But he said it could be accomplished in other ways. For instance, he wrote, "the government could pay for the distribution of contraceptives at community health centers, public clinics and hospitals with income-based support."