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Court to hear birth-control challenges (UPDATED)

UPDATED: 3:26 p.m.   The Court told lawyers to file a proposal by November 16 on how these cases should be briefed, in order to minimize the number of filings and to avoid repetition.  The Court’s letter is here.


On Friday, for the fourth time in three years, the Supreme Court agreed to rule on challenges to the new federal health care law — this time, religious non-profit institutions’ objection to the Affordable Care Act’s birth control mandate, which requires employers to provide their female employees with health insurance that includes no-cost access to certain forms of birth control.  The Court accepted parts of all seven cases on that issue filed with it under the ACA.  It has not yet spelled out how those will be consolidated for a hearing — planned for late March.

In all seven cases, the Court will rule on whether the mandate itself and the government’s attempt to arrange a way to exempt non-profit charities, schools, colleges, and hospitals from the mandate violate the Religious Freedom Restoration Act.  It specifically refused, in two of the cases, to hear claims that the government has discriminated among those allowed an exemption and those not — claims made either under RFRA or under the Constitution’s First Amendment.

The case among the seven that had gained the highest profile because of the identity of the challenger — an order of nuns named the Little Sisters of the Poor — was included in review of the basic RFRA issue, but it also gained review of a second issue: whether the order has to obey the mandate even though its health insurer would not take part because it has an exempt “church plan.”   This was the case that sought review on a constitutional claim of discrimination, which was not granted.

The Court also granted review of three other cases: a request to clarify when a lawsuit against federal officials is barred under the Federal Tort Claims Act because the same issue had been involved in an earlier lawsuit (Simmons v. Himmelreich); a challenge to a requirement that an American convicted of sex crimes must update his registration as an offender in a U.S. state after he has moved abroad (Nichols v. United States); and a request to sort out a conflict among lower courts on when a bankrupt’s debts are barred from being forgiven because of fraud (Husky International Electronics v. Ritz).

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 that institution 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 in Burwell 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.

The birth control mandate has been the most challenged, in numbers of lawsuits, of all provisions of the Affordable Care Act.  Its review by the Court will be the Justices’ fourth examination of challenges: they rejected the protest against the ACA mandate that virtually all individuals have health insurance or pay a penalty (National Federation of Independent Business v Sebelius, in 2012); they ruled against the birth control mandate for for-profit businesses with religiously devout owners in the Hobby Lobby case in 2014; and they upheld the system of subsidies to help lower-income Americans afford health insurance on the government exchanges (King v. Burwell, last Term).

Awaiting the Court is another basic challenge to ACA, questioning whether any part of the law that involves raising of revenue through a tax is unconstitutional because the ACA did not originate in the House of Representatives, as the Constitution requires for revenue-raising laws.  The Court has not yet acted on that case (Sissel v. Health and Human Services Department).

If the Court follows its usual practice, the coming decision on the birth control mandate will have the title of the first such case filed at the Court: Zubik v. Burwell.

In all of these cases, a federal appeals court rejected the challenge to the mandate.  Only after these cases began arriving at the Supreme Court did an opposite ruling emerge, from the U.S. Court of Appeals for the Eighth Circuit.  That case has not yet been appealed to the Court, but it did create a split among the appeals courts, enhancing the prospect that the Supreme Court would step in.

Here, in brief profile, are the seven cases that will be heard sometime during the session that begins on March 21; recall that, in each, the core question is whether the mandate and the government’s move to accommodate religious non-profits violate the Religious Freedom Restoration Act:

Zubik v. Burwell:  filed by the Roman Catholic bishops in Pittsburgh and Erie, Pa., by their dioceses; by Catholic Charities in Pittsburgh; and by one school and two service centers in Erie affiliated with the Catholic church.  The Court denied review on a second question, about discrimination among religious employers.

Priests for Life, Inc., v. Health and Human Services Department:  filed by a non-profit group that promotes the Catholic Church’s position against abortion, along with one of the organization’s directors and two employees.

Roman Catholic Archbishop v. Burwell:  filed by the diocese of Washington, D.C., a group of Catholic academies in the Washington area, two Roman Catholic colleges and three schools, a group of charities, a Catholic Information Center, and a housing service entity.

East Texas Baptist University v. Burwell:  filed by that college in Marshall, Texas, joined by Houston Baptist University, and Westminster Theological Seminary, a multi-campus seminary in various states.

Little Sisters of the Poor v. Burwell:  filed by that order of nuns, with affiliates in Baltimore and Denver, joined by its insurance plan administrator and the operator of a church health insurance plan for the Little Sisters’ employees, plus Reaching Souls, an Oklahoma entity that trains pastors and cares for orphans; a Biblical college in Cleveland, Ga., and a church health plan that serves employees of Reaching Souls and the college.  This case presents the additional question whether the Little Sisters must obey the mandate even though its plan is exempt; the Court declined to review a constitutional challenge to the government’s choice of which institutions to exempt.

Southern Nazarene University v. Burwell:  filed by four Christian colleges, all located in Oklahoma.

Geneva College v. Burwell:  filed by a Christian college in Beaver Falls, Pa., affiliated with the Reformed Presbyterian Church of North America.

Recommended Citation: Lyle Denniston, Court to hear birth-control challenges (UPDATED), SCOTUSblog (Nov. 6, 2015, 2:15 PM),