The Supreme Court is set to hear oral arguments Wednesday in Zubik v. Burwell, another tantrum in lawsuit form by religious nonprofits who don’t want to pay for birth control and don’t want anyone else to pay for it either. And in the somewhat likely event of a tie vote, the result is going to be a huge, nationwide clusterfuck.
Zubik is a set of seven consolidated lawsuits brought by religious nonprofits, all of whom don’t want to provide birth control coverage to their employees, but also don’t want to fill out a form opting out of providing it. It’s the fourth challenge to the Affordable Care Act the Supreme Court will hear in the last four years.
Those nonprofits include the Little Sisters of the Poor, a group of Roman Catholic nuns who run elder-care homes. The Affordable Care Act entitles their employees to contraception coverage, but the Little Sisters and other religious nonprofits don’t like the idea. They argue, wrongly, that some forms of birth control are abortifacients. However—they’re not. They aren’t. They never have been. You can’t blame nuns for not knowing that much about birth control, but that excuse doesn’t work for everyone.
The religious nonprofits have also rejected the Obama Administration’s proposed compromise, in which they would have to fill out a two-page form opting out of providing birth control coverage. Under that deal, their insurance companies would provide it directly to their employees instead, with separate funds and communicating separately.
The non-profits argue that workaround makes them “complicit” in providing “abortifacients,” an argument so dumb even the New York Times editorial board genteelly called it “absurd.”
As Dahlia Lithwick pointed out at Slate, now that the Supreme Court is split 4-4, there’s an actual chance of a tie:
If the court were to tie on this matter, the law would be one thing in some states and something else in others thanks to different rulings in various jurisdictions across the country—precisely the type of confusion Supreme Court review was designed to avoid. Millions of workers will be affected. They’ll be delighted to hear that this should all be resolved by 2021, when Republican senators finally decide to hold hearings to replace Justice Scalia.
In other words, this is one of those times when have an even number of Supreme Court justices is at best an inconvenience and at worst a disaster. And because the nonprofits are suing under religious freedom laws, the case could have implications far beyond birth control; LGBT groups worry that if decided in their favor, it could give religious nonprofits legal cover to discriminate against, say, providing coverage to same-sex spouses.
Sister Loraine Marie Maguire, of Little Sisters of the Poor, speaks to members of the media after attending a hearing in the 10th U.S. Circuit Court of Appeals, in Denver, Colorado, December 8, 2014. Photo via AP Images