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How the Supreme Court vacancy could complicate the latest challenge to Obamacare’s birth control mandate

by AirTalk®

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Nuns rally outside the Supreme Court following oral arguments dealing with religious organizations that want to ban contraceptives from their health insurance policies on religious grounds. SAUL LOEB/AFP/Getty Images

Today, the Supreme Court hears challenges to the Affordable Care Act's contraceptive mandate.

In the case, Zubik v. Burwell, non-profit  religious groups argue that even the accommodation in the law, which allows faith-based groups to opt out of the birth control mandate, remains a burden on their religious beliefs.

In order to withdraw from responsibility, objecting employers must write a letter to the government, which then notifies a 3rd-party insurance provider to take up the cost of the contraceptive coverage. Religious groups face an uphill battle without late Justice Antonin Scalia, who voted in favor of the 2014 Hobby Lobby decision that granted certain privately held companies the right to refuse to pay for birth control under the Religious Freedom Restoration Act of 1993.

Concerns are also raised that a 4-4 split will leave the case unsettled until the vacant seat is filled.


Margaret Russell, Professor of Law at Santa Clara University. Her areas of expertise include constitutional law and the Supreme Court

Marcia Coyle, Chief Washington Correspondent at The National Law Journal. Coyle has covered the Supreme Court for over 25 years as both a lawyer and journalist. She is also a regular contributor of Supreme Court analysis to PBS’ The NewsHour

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