The Obama administration, arguing that the steps it has taken to protect religious objections to birth control by non-profit colleges, hospitals, and other charities satisfy federal law, urged the Supreme Court on Wednesday not to expand the exemption.  A religious college in Illinois is not entitled to the temporary aid that the Court gave to a Colorado charity in January, the newly filed brief contended.

This was the first court filing by the federal government in the wake of Monday’s ruling in Burwell v. Hobby Lobby, and it made clear that officials will continue to resist efforts by non-profit religious institutions to gain a complete exemption from the pregnancy prevention mandates of the new federal health care law.

Monday’s decision settled that for-profit companies that are owned by religiously devout families who oppose birth control have a right to refuse to obey the mandate in the Affordable Care Act.  The federal government, the Court noted, has other ways to ensure that female workers employed by those “closely held” corporations have access to preventive services.

But that decision did not deal with non-profit organizations set up as religious institutions, many of which – especially those affiliated with the Roman Catholic  faith – are contesting the mandate as it applies to them, in lawsuits across the country.

Like the for-profit companies, the non-profits are relying upon the protections of a 1993 federal law, the Religious Freedom Restoration Act.  They are arguing in addition, however, that the “accommodation” that the Obama administration has worked out for religious non-profits itself violates their rights under RFRA, just as the mandate itself is said to do.

Although the Court’s ruling on Monday stressed that it was not deciding directly whether the “accommodation” satisfies RFRA, the new government brief interpreted the votes of five Justices – Justice Anthony M. Kennedy, who wrote a separate opinion, and the four dissenters – as endorsing the “accommodation” as an  appropriate way to respect religious objections of employers without risking a cut-off of female workers’ access to birth  control services and devices.

The new case now unfolding in the Court involves Wheaton College, a religiously  affiliated college of about 3,000 students located in Wheaton, Illinois.  The college’s officials object to two specific forms of birth control:  the “emergency” oral contraceptives ella and Plan B.  Their religious views, they have said, consider those drugs to be ways to end a developing pregnancy, and they thus refuse to include them in their health plans for employees and students.

As the college’s legal plea reached the Supreme Court, it focused on the government’s “accommodation” plan for non-profit religious institutions.  Under that approach, if the college files a government-prescribed form seeking an exemption from providing the birth-control methods to which its officials are opposed, it will be up to the insurance company or administrator of the health plan to provide the coverage – for free – to female employees (and, in this case, students as well).

But Wheaton College, like many other non-profits, takes the position that even filing this form “triggers” the coverage that offends their religious  beliefs.  Thus, its argument continues, the “accommodation” itself imposes a substantial burden on its faith – which also violates RFRA.  After that argument failed in lower federal courts, Wheaton took the issue on to the Supreme Court, which on Monday granted a temporary delay of the July 1 deadline for the college to act to take advantage of the “accommodation.”

The Court is expected to act further with the benefit of the administration’s new brief, and a reply brief that the college is due to file this afternoon.   The case is before the full Court; two Justices – Stephen G. Breyer and Sonia Sotomayor – said on Monday that they would not have given the college even a temporary delay of the mandate. Hanging over the Wheaton College case, and similar cases involving non-profit religious groups, is the fact that the Supreme Court in January gave a Colorado charity, the Little Sisters of the Poor, the temporary option to avoid having anything to do with the implementation of the mandate.  That option was to last while the Little Sisters organization’s challenge to the mandate went forward in an appeal to the U.S. Court of Appeals for the Tenth Circuit, which is based in Denver.

Under that option, the Little Sisters of the Poor did not even have to file the government-prescribed form to get an exemption from the mandate.  All that it had to do – and it did – was to file a letter with government officials noting that they are a religious group and registering their objection to the mandate.

The government’s new brief, however, opposed that option for Wheaton College, arguing that its situation is significantly different from that of the Little Sisters of the Poor.

The Little Sisters health plan is what is technically called a “self-insured church plan,” and it is governed by another federal law, the Employee Retirement Income Security Act.  As such, it is exempt from the birth control mandate of the federal health care law.  Thus, the employees of the Little Sisters of the Poor would not be provided with that coverage in any event.

Because the Wheaton College plan is not like the Little Sisters plan, the government argued Wednesday, if the Court gives the college the option given to the Little Sisters, then the college’s employees and students will be denied coverage that they otherwise would have.  Their plan, it noted, is obliged by federal regulations to provide the coverage.

Posted in Featured

Recommended Citation: Lyle Denniston, U.S.: Don’t expand Hobby Lobby exemption, SCOTUSblog (Jul. 2, 2014, 12:21 PM), http://www.scotusblog.com/2014/07/u-s-dont-expand-hobby-lobby-exemption-6/