Argument preview: Justices tackle challenge to “conscience” exemptions from birth-control mandate

In some ways, next week’s consolidated oral argument in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania will be like 2016 all over again. In the middle of a presidential election season, the justices will once again weigh in on the battle over the Affordable Care Act’s birth-control mandate, which generally requires employers to provide their female employees with health insurance that includes access to certain forms of birth control. But there are at least two notable differences from when the justices took up this question four years ago: Not only will the public be able to listen to the audio of the oral argument in real time, but this time the federal government and the religious nonprofits are on the same side, allied against a pair of states – Pennsylvania and New Jersey – challenging rules that authorize exemptions to the mandate.

Enacted in 2010, the ACA does not specifically create an obligation for employers to provide their female employees with access to birth control. Instead, it directs health plans to provide coverage for “additional preventive care and screenings” for women, and it authorizes the Health Resources and Services Administration, part of the Department of Health and Human Services, to issue guidelines to implement this provision. The guidelines eventually released by the government required health plans to provide access to FDA-approved birth control at no cost to the women covered by the plan. In 2013, the federal government exempted churches and other houses of worship from the mandate, and it provided an “opt-out” process to accommodate religious nonprofits that objected to having to comply. One year later, in Burwell v. Hobby Lobby, the Supreme Court ruled that a corporation owned by a religiously devout family with sincere objections to providing their employees with access to birth control was also entitled to opt out of complying with the mandate.

In 2016, the Supreme Court heard oral argument in a challenge by religious nonprofits to the mandate and the accommodation process. The religious nonprofits argued that even notifying HHS of their objection to the mandate placed a substantial burden on their exercise of their religion. However, after the death of Justice Antonin Scalia, the court sent the cases back to the lower courts with instructions for the federal government and the challengers to try to work out a solution that would allow female employees to receive full contraceptive coverage while still respecting the employers’ religious beliefs.

Next week the justices will hear oral argument in a pair of consolidated cases that arose after the Trump administration issued new rules that expanded the exemption from the mandate and allowed private employers with religious or moral objections to opt out of providing coverage for their employees without any notice. Pennsylvania and New Jersey went to court to block the new rules, arguing that they violate both the Affordable Care Act and the federal laws governing administrative agencies. A federal district court ruling barred the government from enforcing the rules nationwide, and the U.S. Court of Appeals for the 3rd Circuit upheld that ruling. Last year the federal government and the Little Sisters of the Poor, a Catholic religious group that works with the elderly, went to the Supreme Court, asking it to overturn that ruling. The justices granted review in December and had originally scheduled the case for oral argument today, later postponing it in light of the COVID-19 pandemic.

With only 60 minutes in a normal argument and eight justices who are generally active questioners (Justice Clarence Thomas rarely asks questions), there is rarely a moment of dead air at the Supreme Court. The justices have even more ground to cover than usual in this case, however, because they agreed to take up four separate questions. The first question is a highly technical one, although a ruling for the states could derail the expansion of the exemptions: whether the final rules creating the “conscience” exemptions, issued in 2018, were invalid because the interim rules, promulgated in 2017, were issued without the notice and opportunity for the public to comment normally required by the federal laws governing administrative agencies.

Pennsylvania and New Jersey argue that neither set of rules complied with the procedural requirements imposed by federal law. The agencies that administer the ACA did not have the power under federal law to issue the interim rules without notice and an opportunity to comment, the states contend. Federal health-care laws generally require notice and comment, and “the agencies provided no evidence that the 2017 rules were so urgently needed that agencies could not provide notice and comment beforehand.” Litigation over the accommodations and any uncertainty about the status of compliance with the mandate are not the kinds of “good cause” that would justify skipping notice and comment: If they were, the states warn, “the exception would swallow the rule.”

The government couldn’t dig its way out of this hole by asking for comments on the interim rules after they were issued but before it released the final rules in 2018, the states continue. The APA requires notice and an opportunity for comment so that agencies can “avoid errors and make a more informed decision.” But when an agency has already issued a rule, the states reason, asking for notice and comments is more like a formality, and the comments generally carry less influence. In some cases, the states concede, courts have allowed rules that were issued after an improper process to remain in effect if the agency can show that it maintained “an open mind throughout the process,” but there is no sign of that in this case.

The government counters that all that matters is whether the final 2018 rules expanding the exemption followed the notice-and-comment procedures – and they did. Nothing in federal administrative laws suggests, the government stresses, “that procedural defects in the interim rules invalidate the final rules.” But the interim rules were also procedurally valid, the government maintains, because Congress gave the agencies the power to issue such interim rules as the Secretary of the Department of HHS “determines are appropriate.” In any event, the government notes, the agencies had “good cause” to issue the interim rules without providing an opportunity for notice and comment: They wanted to resolve the uncertainty created by litigation over the exemption and accommodation, and “protect employers with sincere religious and moral objections from potentially devastating penalties,” without having to wait for a notice-and-comment period to end.

One of the main issues in the case is whether the agencies that administer the ACA had the power to expand the exemption under the ACA and the Religious Freedom Restoration Act, a federal law that bars the government from imposing a “substantial burden” on the exercise of religion unless doing so would serve an important government interest and the government uses the least drastic means possible.

The government argues first that, because the ACA instructs HRSA to issue guidelines regarding the kinds of preventive care for women that insurers must cover, the text of the statute gives HRSA “ample authority to develop guidelines that account for sincere conscience-based objections to contraceptive coverage.” And HRSA has done precisely that, the government explains, establishing the exemption for churches and other houses of worship back in 2011 – which belies the idea that “HRSA must make all-or-nothing choices about whether to mandate coverage of services like contraception.” At the very least, the government suggests, HRSA’s interpretation of the ACA is reasonable and therefore entitled to deference.

The government insists that the conscience exemption is also required, or at least authorized, by RFRA. For employers with sincere religious objections to providing their female employees with health insurance that includes access to birth control, the government contends, requiring them to comply with the accommodation would force them to choose between violating their religious beliefs or – if they decline to comply – paying a large penalty. In Hobby Lobby, the court ruled that this would be a “substantial burden” on the company’s religious beliefs, and the same would be true here. And there are other, less drastic ways to ensure that women have access to birth control – through government programs that provide free or low-cost contraceptives directly to women, for example.

The Little Sisters tell the justices that “RFRA not only permits, but affirmatively requires,” the conscience exemption. The Supreme Court in Hobby Lobby ruled that the birth-control mandate violates RFRA by imposing a substantial burden on religious exercise. The only question, the Little Sisters assert, is how the government is going to alleviate that burden. The various accommodations that the government has offered are really just efforts to get the Little Sisters to comply with the mandate, which the Little Sisters’ religious beliefs will not allow them to do. “The only way to bring this long-simmering dispute to a close is to make clear once and for all that the way to stop burdening the Little Sisters’ religious exercise is to stop insisting on compliance with the rule,” the Little Sisters conclude.

Pennsylvania and New Jersey counter that although the ACA gave the agencies power to decide what preventive services an insurer has to cover at no cost to the women it insures, the ACA did not give the agencies the discretion to carve out exemptions for “broad classes of employers from their obligations” to provide that coverage. The ACA is clear on this point, so the courts should not defer to the agencies’ interpretation. The states also push back against the idea that there is a tension between striking down the conscience exemptions and allowing the exemption for churches to stand, arguing that the latter is “independently authorized by the well-established” doctrine that gives churches autonomy to run their own affairs.

The conscience exemptions, the states continue, go beyond what RFRA allows. RFRA, they explain, seeks a “sensible balance,” which is exactly what the accommodation achieves by respecting “both the health of women and the religious liberty interests of employers and universities.” But in any event, even if the mandate did burden the employers’ religious exercise, it still would not violate RFRA because the government’s interest in making sure that women have complete access to contraception is so strong – not only because birth control helps to prevent pregnancy, but because access to family planning “also allows women to participate more fully in the workforce and improves their economic and social status.” Because the accommodation does not violate RFRA, the agencies did not need to carve out a broader conscience exemption to the mandate. The states are sharply critical of the government’s suggestion that a woman who works for an employer who invokes the conscience exemption could still obtain access to contraception elsewhere. That analysis “has the compelling interest exactly backwards,” the states argue. The ACA’s goal “was to eliminate such hurdles to women’s access to necessary health care.”

The third question before the court may not be pivotal to the outcome of the case, but it is nonetheless tremendously important to the Little Sisters: whether the nuns have the legal right to appeal the decision invalidating the exemption when a district court in Colorado had blocked the enforcement of the mandate against the Little Sisters. The states urge the Supreme Court to uphold the lower court’s ruling that the Little Sisters lack a right to sue, known as standing, “because they are not affected by” the order preventing the government from implementing the exemptions. “That they care deeply about the issue does not establish” a right to sue, the states conclude.

The Little Sisters retort that the Supreme Court should not “decide this dispute about the religious liberty of the Little Sisters and religious employers like them as if it were an intermural dispute between governments.” The Little Sisters explain that they “obviously have standing to defend a rule that finally grants them the exemption they have labored for years to obtain,” which “gives them broad protection to provide health insurance to their employees in accordance with their sincerely held religious beliefs.” It is even clearer that they have a right to sue, they conclude, because the primary issue in this case is whether RFRA authorizes or requires the religious exemption – which is the basis for the Colorado ruling in their favor.

The final issue in the case is more likely to come into play only if the Supreme Court sides with the states and rules that the expansion of the exemption was improper: whether the court of appeals should have upheld a nationwide preliminary injunction banning the government from implementing the final rules. The subject of nationwide injunctions has been widely discussed and a subject of some frustration for both the federal government and some justices in recent years.

The government maintains that even if the Supreme Court agrees with the states that the conscience exemption violates the law, it should rule that the government is only barred from implementing the exemption in Pennsylvania and New Jersey, rather than throughout the country. The “sweeping” relief ordered by the lower courts in this case, the government writes, “illustrates the problems with nationwide injunctions’ increasing disruption of the federal-court system. If the court does not uphold both rules on the merits, it should take this opportunity to resolve the status of nationwide injunctions, reiterating that judicial relief may be no broader than necessary to resolve the injuries of the plaintiffs to a particular case or controversy.” Moreover, the government adds, the district-court practice of issuing nationwide injunctions has often left the Trump administration “with little choice but to seek emergency relief” in the Supreme Court to avoid having its policies blocked “for years while the ordinary appellate process unfolds.”

The states answer that the nationwide injunction issued by the district court “was no broader than necessary to provide the States with complete relief and well within the district court’s discretion.”

As the district court explained, “hundreds of thousands” of Pennsylvania and New Jersey residents travel to other states to work, while out-of-state young adults who are covered by their parents’ health insurance come into the two states to attend school or to work. Moreover, still others work from home in Pennsylvania and New Jersey with health insurance from their out-of-state employers. Unless the government is barred from implementing the exemptions across the country, Pennsylvania and New Jersey will have to pay for contraceptive care for women whose out-of-state employers claim the exemption.

A decision in the case is expected sometime this summer.

This post was originally published at Howe on the Court.