On Wednesday, the U.S. Supreme Court heard oral arguments in the Little Sisters of the Poor’s lawsuit against Obamacare over religious freedom, Zubik v. Burwell. The regulations require the nuns to include birth control — which can act as an abortifacient — in healthcare plans for employees.

Defending the Obamacare regulation for the government was United States Solicitor General Donald Verrilli, Jr. The attorneys who presented oral argument defending the Little Sisters were Paul Clement and Noel Francisco, who coincidentally both clerked for the recently deceased Justice Antonin Scalia. His absence was strongly felt.

I spoke with Ken Klukowski, a constitutional law attorney with First Liberty, who is representing clients in related religious freedom challenges and was present for the oral arguments.

Chief Justice Roberts got right to the crux of the issue, asking Verrilli whether the government could impose the same mandate on churches that it is imposing on the Little Sisters and make them fund abortions for church employees.

“Could you apply the same requirements you apply to the Little Sisters to the church entity itself?” Roberts asked. “I think we could, Your Honor, yes,” Verrilli answered.

This is astonishing considering it is settled law that churches are exempt. Klukowski said this was an “all-out frontal attack on religious liberty,” and he is shocked the media mostly ignored covering the hearing.

Klukowski said the Obama administration put forth a two-part argument: 1) Executing forms that obligate a secular insurance company to pay for an abortion does not make you complicit, does not substantially burden your faith. Of course, this in itself constitutes “a classic example of an establishment of religion, the government telling you what your faith teaches and allows,” Klukowski said. “Obama is telling us what our churches teach in our daily lives.” 2) Even if it is a substantial burden, under the Religious Freedom Restoration Act, a burden on faith can be still legal if it’s the least restrictive means to achieve a compelling public interest.

Klukowski said that abortion is no longer considered a fundamental right. In the 1992 SCOTUS decision, Planned Parenthood v. Casey, the court walked back the Roe v. Wade decision that had made abortion a fundamental right on the level of the Bill of Rights.

Here, Verrilli defended Obamacare by arguing that access to birth control is a fundamental right. He claimed it was a compelling interest that necessitated seamless, uninterrupted direct coverage to obtain abortions, and making religious groups provide that coverage is the least restrictive means to do so.

Justice Samuel Alito challenged him on this, asking why couldn’t the Obamacare exchanges be the least restrictive means instead of Christian nonprofits. Alito did joke, however, that the exchanges are hard to access and navigate. Verrilli said the right to birth control is so compelling that it is necessary to include it in a single plan. Alito responded by asking why, since there are plenty of people with two separate insurance cards. Klukowski insisted that the government’s position is really nothing more than an authoritarian argument.

So What Happens Next?

With only eight justices on the court, if there is a 4–4 split, then the lower court opinion is simply affirmed, but no guiding national precedent is set. This would leave the law split in the various circuits, since some of the circuit courts have ruled for religious freedom while others have ruled against it.

Justice Anthony Kennedy, considered the swing vote on the court, indicated from his questions during oral argument that he was likely to side with the conservative wing of the court; but with Scalia gone that will result in a 4–4 split. The Little Sisters have lost in all the lower courts, so in those areas of the country, they will be subject to the birth control mandate.

Klukowski told me that anything could happen at this stage. The court does not have to issue a decision yet, but could postpone it until Scalia is replaced. Or the court could postpone a decision until a similar appeal reaches the court later this fall, perhaps one where the circuit court had ruled favorably toward religious freedom.

If a conservative like Ted Cruz becomes president, he could make an executive action abolishing the regulation. Or Congress could override it by statute.

If the court rules against Little Sisters, they may choose to drop all health insurance coverage for employees, resulting in a penalty of $2,000 per employee annually. Notably, this will increase the number of uninsured in the country. The penalty is even worse if they simply refuse to offer contraception coverage in healthcare plans. It would amount to $70 million a year at a rate of $100 per employee per day.

Klukowski thinks there is a good chance the court will put off the decision. If not, the Little Sisters — and many other Christian and religious organizations — may be forced to go out of business.