Outside the Beltway

Supreme Court To Hear Another Round Of ObamaCare Birth Control Mandate Cases

The Supreme Court is diving back into the debate over the PPACA's birth control coverage mandate.

Doug Mataconis · Saturday, November 7, 2015 · 12 comments

The Supreme Court announced today that it had accepted appeals in a series of seven related cases that promise to bring the issue of the birth control coverage mandate and claims of religious liberty, last dealt with two years ago in the Hobby Lobby case, back before the Supreme Court during this term:

WASHINGTON — The Supreme Court on Friday announced that it would again address a clash between religious freedom and access to contraception.

The case concerns regulations under President Obama’s health care lawthat require most employers to provide free insurance coverage for contraceptives to female workers. The regulations say the insurance must cover preventive services, including all forms of contraception approved for women by the Food and Drug Administration.

The case is the court’s second encounter with the contraception requirement and its fourth consideration of an aspect of the health care law, the Affordable Care Act.

Houses of worship, including churches, temples and mosques, are automatically exempt from the contraceptive coverage requirement and do not have to file any paperwork. The new case concerns a second category of institutions — nonprofit groups like schools and hospitals that are affiliated with religious organizations.

The administration has offered them an accommodation. It allows the nonprofit groups to forgo paying for coverage and avoid fines if they inform their insurers, plan administrators or the government that they seek an exemption. But the groups challenging the arrangement say that filling out a form or sending a letter is unacceptable because it makes them complicit in conduct that violates their faith.

In 2014, in Burwell v. Hobby Lobby Stores, the Supreme Court considered a third category of institutions: for-profit corporations run on religious principles. In a 5-to-4 decision, the court said that such companies could not be forced to provide coverage.

Justice Samuel A. Alito Jr., writing for the majority, said the middle-ground accommodation that the Obama administration had offered to nonprofit groups was a preferable alternative, though he did not say it was lawful. That alternative is at issue in the new case, a challenge under the Religious Freedom Restoration Act of 1993.

Under the 1993 law, government requirements that place a substantial burden on religious practices are subject to an exceptionally demanding form of judicial scrutiny. The two sides differ about whether the accommodation is such a burden. If it is, the government must show that the coverage requirement is “the least restrictive means of furthering” a “compelling governmental interest.”

Seven federal appeals courts have ruled for the government in challenges to the accommodation. Last November, for instance, Judge Cornelia T. L. Pillard, writing for a unanimous three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, ruled against the challengers at every step of the analysis.

The accommodation did not impose a substantial burden, Judge Pillard wrote. “All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form,” she wrote. “That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.”

She added that providing contraception coverage was a compelling interest, a point the Supreme Court assumed without deciding in the Hobby Lobby case. “The accommodation requires as little as it can from the objectors,” she added, “while still serving the government’s compelling interests.”

In September, however, a three-judge panel of the Eighth Circuit in St. Louis disagreed. Ruling at a preliminary stage of the case, it said the fines the challengers faced if they followed their faith were a substantial burden under the 1993 law.

Robert Barnes at The Washington Post has additional details about the cases, as does Lyle Denniston:

Because the birth-control cases all focus on a 1993 federal law, the Religious Freedom Restoration Act, rather than the Constitution, the Justices will face questions about whether the mandate to provide free access to twenty forms of birth control drugs or devices, sterilization, screenings, and counseling imposes a “substantial burden” on the religious freedom of non-profits that have religious objections to some or all contraceptives, whether the mandate in fact serves a “compelling interest” of the government, and whether an attempt to provide an exemption from the mandate satisfies the requirement that such an accommodation is “the least restrictive means” of achieving the government’s policy interest.

When Congress in 2010 passed the mandate as part of the ACA, it ordered the government to provide “preventive care” for women, but did not spell that out, leaving it to government agencies.  Two Cabinet agencies came up with the list of contraceptive techniques and services, and required employers with fifty or more employees to provide that kind of coverage in their own health insurance plans, or pay very stiff fines.

At the outset, the government exempted from the mandate “religious” employers, which were limited mainly to houses of worship and religious orders, on the theory that they were more likely to employ women who, like the institutions themselves, had religious objections to birth-control methods.

Since the beginning, the government has tried three times to fashion an accommodation for non-profit religious institutions that have faith-based objections to some or all contraceptives for their employees.  As of now, the accommodation requires the institution to notify the government of its objection; that, the government argues, is enough to excuse it from any direct role in providing contraceptives to their female employees.   From then on, it is the government, working with the institution’s health insurer, that actually provides the free access to contraceptives for those employees.

The mandate has been challenged in scores of lawsuits across the nation, by both for-profit businesses owned by religiously devout individuals and their families and non-profit religious institutions that run charities, hospitals, schools, and colleges.  There was no exception or accommodation for for-profit firms, but the Supreme Court struck that down, under RFRA last year inBurwell v. Hobby Lobby Stores.  (The government has since fashioned an accommodation for closely held businesses that are owned by religious individuals and families.)

The government, in all of these court challenges, has conceded that institutions can have sincere religious objections to contraceptives, as many Roman Catholic as well as other traditional sects do, and officials do not question those beliefs.  However, the government has also insisted that those institutions cannot use those views to bar the government from working out a way to ensure that women have access to contraceptives, to protect their health and protect their families, even if they are employed by religious institutions that object.

The religious institutions have countered that, because the plans that will provide for the access are those institutions’ own heath insurance systems, the government will “hijack” those to provide the contraceptives.  The mere act of notifying the government of a religious objection, those institutions have contended, works as a “trigger” to the government to go forward with contraceptive coverage through their plans.  That, the institutions have said, confronts them with the choice of violating their religious beliefs or paying the heavy fines.

Those institutions will be arguing before the Court that the accommodation the government has offered them is not the “least restrictive means” for the government to carry out its goal of providing female workers with free access to birth control.   They have suggested, among other alternatives, that the government allow female employees to obtain their own contraceptive coverage through health insurance “exchanges” under the ACA, that the government itself provide birth-control services directly to the female employees, or other alternatives that simply leave the objecting religious institutions out of any role in the process.

While at least some of the institutions would prefer that their female workers (or college students) have no access to contraceptives, they are mainly willing to accept an alternative if they are left out completely.

These cases are, then, fundamentally different from Hobby Lobby and the other cases that accompanied it through the Federal Courts in the wake of the passage of the Affordable Care Act and the issuance of the Department of Health And Human Services mandate regarding birth control coverage. In those cases, the courts were dealing with private non-religious business entities that were owned by individuals who contended that their religious liberty was violated by the mandate because it included providing coverage for drugs that they considered to be abortifacients. In it’s decision in June 2014. the Supreme Court ruled that the mandate violated the provisions of the Religious Freedom Restoration Act because it was not the least restrictive means for the government to accomplish the goal of providing birth control coverage, a requirement under RFRA. As I noted at the time, the decision seemed to me to be a correct application of RFRA to the facts of those cases and that the real problem was the RFRA laws themselves which are arguably unconstitutional and at the very least ill-advised public policy when they are written as broadly as the Federal law is so that it would even apply in a situation like the one presented in those cases. However one feel about RFRA laws, though, the important thing to remember about the Hobby Lobby cases is that they applied to the somewhat limited circumstance of closely held corporations that are large enough to even fall within the category of businesses covered by the mandate.

The cases before the Court now, though, involve explicitly religious institutions that also employ people who are not part of their religious order in one respect or another. When the HHS mandate was first announced, and after it resulted in serious and arguably well-founded complaints from religious institutions that would otherwise have been covered by the mandate, the Administration attempted to create a workaround that would address the religious liberty concerns of these groups while finding another way to achieve the goal of providing coverage for contraceptives to female employees. In essence, the workaround that they came up with involves these religious organizations filling out a form that certifies their status and their religious objections and then shifts the obligation to provide coverage to insurance companies. For the Plaintiffs in these cases and others, though, even this wasn’t sufficient. Even filling out a form, they claim, is a violation of their religious liberty rights under RFRA because it allegedly makes them complicit in what they consider sinful activity. It is, in all honesty, an argument that I have never been able to make any sense of because, on its face, the argument that filling out a form certifying that one is making a religious objection to a government regulation is itself a violation of religious liberty just doesn’t make much sense at all even under the most expansive interpretation of RFRA laws. That, perhaps, is why seven of the eight Federal Appeals Court panels that have heard arguments in these cases have rejected them. Because one panel out of the Eighth Circuit, though, has at least partially accepted the argument, though, we’re now at the point where the Supreme Court was pretty much obligated to step in and resolve the issue.

The Supreme Court’s acceptance of these cases is also likely reverberate in the 2016 Presidential election as well as the legal world. Already, Republican candidates for President have been hitting on the religious liberty arguments that many on the right have been making in the wake of both the Hobby Lobby case and Obergefell v. Hodges, the Supreme Court’s decision legalizing same-sex marriage. Several candidates, such as Ted Cruz and Mike Huckabee and others made news over the summer with their involvement in the case of Kim Davis, the Kentucky Clerk of Court who went to jail when she refused to comply with a Court Order that she issue licenses to same-sex couples notwithstanding her religious beliefs. On the Democratic side, the fact that this issue involves birth control will likely play a role in the candidate’s appeal to women. And, both parties are likely to point to this case and others as examples of why their candidate should be elected President given that whomever wins the election next year is likely to have the opportunity to appoint at least one or two, and possibly more, new Justices to the Supreme Court in their first term alone.

It’s far too early to tell which way the Court is headed in these cases, of course. Because the issues in Hobby Lobby are so different from what’s at issue here, it isn’t necessarily the case that what happened there can be used as any guide for what might happen here, and we’re not really going to get any hints in that regard until oral argument, which probably won’t be until March at the earliest. It’s safe to say, of course, that whatever result we get from the Court will be sharply divided, though, and that it will likely be Justice Anthony Kennedy who may ended up being the deciding factor in a high-profile and controversial case yet again. Which way he might be leaning on this one, though, is anyone’s guess at this point.