The court’s four liberal justices suggested during arguments that the administration had adequately accommodated faith-based employers and universities by letting them opt out and have their insurer provide the required birth-control coverage, with the government ultimately paying the cost. Justice Anthony Kennedy, the administration’s best prospect for a fifth vote, appeared skeptical.

Two options

The administration currently gives objecting nonprofits two options: They can shift responsibility onto their insurer by providing it with a “self-certification” form, or they can notify the U.S. Department of Health and Human Services of their objection and provide contact information for their insurer. The religious groups say they shouldn’t have to play even that limited role.

The March 29 Supreme Court order suggested a third possibility. It asked whether objecting employers could merely tell their insurer that they object to contraceptive coverage and don’t want to include it. They wouldn’t have to submit any separate, written notice to the insurer or the government.

Under the court’s proposal, the insurer then would notify the employees that it would provide birth control coverage separately.

The order asked the two sides to address “whether and how contraceptive coverage may be obtained” through the groups’ insurance plans “but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

‘Very similar’

Verrilli said the court’s proposal was "very similar to the existing accommodation," differing primarily by not requiring that the employer put its objections in writing. He said the writing requirement "provides clarity and certainty for all parties whose rights and duties are affected by the accommodation."

The faith-based groups said contraceptive coverage must come from separate insurance policies with "separate enrollment processes, insurance cards, payment sources, and communication streams."

The religious groups have been at a disadvantage since Scalia’s death. Scalia was in the majority in a 5-4 ruling in a 2014 case involving the craft-store chain Hobby Lobby, when the court said closely held corporations can refuse to provide birth control coverage to employees. The current case involves religious nonprofits, rather than for-profit companies.

A 4-4 split would leave the issue in an uncertain state. Eight of the nine federal appeals courts that have ruled on the issue have said the administration is adequately protecting religious rights, while the ninth appeals court ruled for the religious groups. A deadlock would leave all of those decisions in place, meaning the law would vary depending on the part of the country.

The court could also hold the case and schedule a new argument after a ninth justice is confirmed.

The lead case is Zubik v. Burwell, 14-1418.

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