WHEN abstractions fuzz the mind, one tends to grope for a handy metaphor to make sense of it all. And when judges hear a case in which dozens of Christian charities and schools say that filling out a form designed to protect them actually constitutes a mortal threat to their beliefs, a skilled lawyer is wise to supply the berobed ones with a conceptual crutch. This is just what Paul Clement did last week during the oral argument in Zubik v Burwell, the latest challenge to Obamacare to reach the Supreme Court. Mr Clement twisted reality rather impressively when he said that the government’s aim was to “hijack” the health plans of religious organisations in order to provide their female employees with contraceptives. But two conservative members of the court who, some thought, might join the four liberal justices in ruling against the groups, seemed rather taken with the idea.
First, a little context. Regulations stemming from the Affordable Care Act require most employers to provide free birth control to the women who work for them. Some companies with grandfathered insurance plans are exempt from this mandate, as are houses of worship and closely held corporations with religious objections to birth control (per Burwell v Hobby Lobby Stores, a case decided in 2014). Zubik asks whether the Obama administration’s offer of an accommodation to religious non-profit groups who object to contraception is itself a violation of these organisations’ rights under the Religious Freedom Restoration Act, a law from 1993 that offers religious people a legal buffer above and beyond what the First Amendment guarantees. Plaintiffs ranging from East Texas Baptist University to the Little Sisters of the Poor, a charity that runs homes for the elderly poor, say that the accommodation—according to which the government arranges for the workers’ contraceptive coverage after an organisation expresses a desire to opt out of providing it—is a “substantial burden” on their religious liberty. Signing the form or mailing in a letter constitutes complicity in sin, they say.
Mr Clement crystallised the complaints by noting the “massive penalties” incurred by organisations who refuse to abide by the regulations. “They are going to hijack our health plans and provide the coverage against our will”, he told the justices. Later, when Donald Verrilli, the solicitor-general, took the podium, Chief Justice John Roberts favourably quoted Mr Clement: “The petitioner has used the phrase ‘hijacking’, and it seems to me that that's an accurate description of what the government wants to do. They want to use the mechanism that the Little Sisters and the other petitioners have set up to provide services because they want the coverage to be seamless”. Justice Anthony Kennedy embraced the term as well, incorporating it into his questioning of Mr Verrilli without a hint of a scare quote: “That's why it's necessary to hijack the plans”, he said, when teasing out the purpose of the birth-control regulations.
Think for a moment about what it means to “hijack” something. The first example that comes to mind is not an insurance plan but a plane that nefarious passengers commandeer for sinister purposes. A “carjacking”, similarly, involves jumping into someone else’s vehicle and stealing it. Any form of hijacking is marked by violently wresting property (whether tangible or intangible) from its legitimate owner. And here is where Mr Clement’s metaphor breaks down. When the government arranges for contraceptive coverage with the insurance company used by the religious charity, it is not commandeering anybody’s property. Nor is it taking metaphorical control of the group’s health insurance plan. Instead, the government is seeking to fulfil Obamacare’s near-universal guarantee to female employees by working with the same insurance company or third-party plan administrator that provides the rest of the employee’s health benefits. Neither the insurance company nor the plan is the property of the religious charity: Aetna is not a wholly owned subsidiary of Catholic Charities. The non-profit and the insurer are independent entities. When a school brings a child to a playground that his parents (for some reason) opt to avoid, the teachers are not “hijacking” the swingset. They are using a resource for the child’s benefit. The parents may be displeased about the school trip to the forbidden playground, but any complaint they raise would necessarily have a paternalistic flavour. Employers do not have such a role vis-a-vis their employees.
There are several levels of analysis facing the justices in Zubik. They must decide whether the accommodation constitutes a “substantial burden” on the organisations’ religious qualms. If it does, the justices must ascertain whether the government’s interest in contraceptive care for the tens of thousands of women who work for these groups is “compelling” and whether there is a way to provide that care that impinges on the nuns’ and bishops’ beliefs less gravely. Judging by the eagerness with which the conservative half of the bench seemed to accept the misleading “hijack” analogy, the court may be headed for a 4-4 tie. In that event, the half-dozen-odd appeals-court decisions in the government’s favour will stick, for now, as will the single ruling in the 8th circuit upholding the religious group’s claims. That’s a prescription for a legal mess that could endure until Senate Republicans decide it’s no longer a good idea to, yes, hijack the nomination of the 113th Supreme Court justice.
