One of the blockbuster cases before the Supreme Court this term may very well end up in a 4-4 tie.
Wednesday, the eight judges heard a case about the Affordable Care Act’s guarantee of free birth control for women. The law also gives an automatic exception to houses of worship, like churches — but not nonprofits like religious schools and hospitals — that object to contraceptives. The government gave those nonprofits a workaround, but they say that it still burdens their free exercise of religion.
Here’s what’s NPR’s Nina Totenberg told us right after she sat through arguments: “The bottom line is that the court seemed very divided. This may well be one of those 4-to-4 ties. The key to it all appears to be Justice Anthony Kennedy, and he sent mixed signals. He said he couldn’t imagine that you could say to a university that they don’t have to at least opt out so that contraceptive coverage can be provided for their faculty staff and students. But the chief justice kept referring to this as a hijacked plan … [saying] that the federal government was hijacking the plan of the religious nonprofit. And Kennedy by the end of the argument was adopting that language repeatedly. It’s mixed signals. But if you were a betting person you might say that this was going to be a 4-to-4 tie.”
If this case comes down to a 4-4 vote, it will create a patchwork situation in the country. Seven of eight appeals courts have ruled that requiring nonprofits to opt out from the mandate doesn’t impose a “substantial burden” on religious rights. One court ruled otherwise. That means that in most of the country, nonprofits will have to continue to opt out, but in some other states they will be exempt.
Ultimately, if this does end up in a 4-4 tie, the case is likely to end up at the Supreme Court again, once a new justice is appointed.