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The legal fate of Obamacare: Round 4

NOTE TO READERS: Next week the blog will publish a multi-part symposium on the seven cases the Supreme Court will hear this Term on the latest challenge to the Affordable Care Act: a protest by religious non-profits arising from the law’s birth-control mandate.  This post provides an overview of the cases and the main arguments by the two sides.  The following posts will provide varied perspectives on the significance of the controversy.


Assuring that the legal threats to the new federal health care law will continue to unfold in the final year of President Barack Obama’s term in the White House, the Supreme Court turns next to the plea of religious non-profit schools, colleges, hospitals and charities to be exempted from any role in carrying out the law’s promise of free contraceptives to working women and some students.  It is a high-stakes sequel to the 2014 ruling giving some for-profit companies an exemption from that mandate, and it probably will further clarify church-state relationships in America.

This will mark the fourth time the Court has taken up a challenge to the Affordable Care Act: the Court in 2012 upheld the law’s requirement that nearly all individuals must have health insurance or pay a penalty (National Federation of Independent Business v. Sebelius); in 2014 it ruled that for-profit businesses owned by a small circle of religiously devout families or investors could not be required to provide access to contraceptives (Burwell v. Hobby Lobby Stores); and in 2015 it upheld the availability of government subsidies for lower-income people seeking health insurance on all marketplaces or exchanges across the country (King v. Burwell).

Actually, the government has on its docket a fifth challenge to the act, but it has not yet agreed to review that case (Sissel v. Department of Health & Human Services).  It involves a claim that all of the tax provisions in the act are unconstitutional because they did not originate in the House of Representatives, as the Constitution requires for revenue-raising legislation.  When the Senate passed the act, it did so by substituting an entirely new text for a less important bill that did originate in the House.  Lower courts have rejected that challenge.  The Court may act on it early in the new year and, if it promptly granted review, that case, too, could be decided in the current Term.

For the new birth control cases, it is important to emphasize at the outset that, while religious freedom in the United States often becomes a constitutional dispute, the Court has chosen not to consider any of the current round of protests based on a constitutional claim.  The legal basis of all seven cases is the meaning and reach of the Religious Freedom Restoration Act, a law passed by overwhelming margins in Congress in 1993 to correct what Congress believed was a threat to religious freedom in a Supreme Court decision (the 1990 decision in Employment Division v. Smith).

Any interpretation of RFRA — for example, the view the Court took of it in the Hobby Lobby case involving for-profit companies — can have a major impact on the dealings that faith-based organizations and government agencies have with each other.

RFRA, as it is popularly known, bars the federal government from putting any “substantial burden” on someone’s religious practice or belief, even if the law did not target religion but was instead applied generally.  If a burden is found to exist, but the policy or program is determined to further a “compelling government interest,” the requirement can be enforced, but only by specific measures that are “the least restrictive way” to achieve the government’s policy interest.

On November 6, the Court granted review of all or part of seven separate petitions, but when the final decision does emerge, it will be recorded in history under the name of the first-filed petition: Zubik v. Burwell.  The Most Rev. David A. Zubik is a Roman Catholic bishop in Pittsburgh, Pa., and he is joined by the bishop in Erie, Pa., their dioceses, and various non-profit institutions in those two cities.  Probably the best-known case among the seven, even at this early point, is the case of Little Sisters of the Poor v. Burwell.  That case involves an order of Roman Catholic nuns who serve the poor and the elderly, and thus have engendered widespread sympathy in public commentary on this controversy.

Each of the seven cases raises basically the same overall question: does it violate RFRA for the government to require a religious non-profit institution to take any role whatsoever in the process by which the contraceptive mandate is enforced for the female employees or students at that institution?  (The Little Sisters of the Poor case added a second question: whether an institution can be required to take any part if its health insurer is itself exempt from the act.)

There is no dispute, in any of the cases, that it would impose a “substantial burden” on the religious views of a Roman Catholic institution if it had to provide, directly and with its own funds, contraceptive devices or methods to which it objects on religious grounds.

Thus, under RFRA, the dispute in the cases focuses first on whether the federal government has a “compelling interest” in assuring free access to contraceptive devices or methods for women and students of child-bearing age.  The religious institutions take the view that the government has no such interest in enlisting non-profit religious institutions at any point in the chain of actions between providing insurance coverage for birth control and actually making it available.  The government takes the view that its interest in assuring wide access to birth-control methods to women of child-bearing age is not only compelling but overwhelming because of the impact of pregnancy and childbirth on the lives and health of all women.

Second, the dispute focuses next on whether any involvement of the objecting religious non-profits is necessary to achieve the government’s interest in assuring free access to birth control.  This inquiry more or less merges into a third: whether the ACA mandate is “the least restrictive means” the government has to achieve its interests.  The religious institutions argue that the religious non-profits’ own health plans should not be “hijacked” by the government to make the mandate work.  Thus, they contend, those plans are not necessary to the overall scheme.  And, the institutions add, the government could provide access by a number of alternatives with no involvement at all by the religious non-profits.  The government counters that it is necessary to use existing health plans for the government to implement the mandate, that it has done everything it can to keep the institutions themselves out of approving or delivering contraceptives, and that there is no other mechanism that would result in a program of nationwide, free access to birth control.

While the institutions are operating on the overall premise that the government simply cannot commandeer such institutions into a program that burdens their faiths, the government is operating on the overall premise that religious institutions do not have and should not have the authority to veto government programs that benefit third parties — in this situation, the working women and female students in colleges and high schools.

Moreover, the government has argued that it has gone as far as it could to give religious non-profits an “accommodation” of their faiths by virtually completely taking them out of the mandate chain of action.  It must have some way to learn that a religious institution does object to a program, so at a minimum, it says, the religious institution must make its objections known by some means upon which the government can rely.  The institutions counter that simply leaving them out in the first place (as the mandate otherwise does for the employees of churches, synagogues and mosques that are involved directly in religious worship) is all that the government would have to do, and it can learn the identity of insurers by its own means — so long as it does not enlist the institutions’ own health plans in the process.

It appears that the Supreme Court will have to resolve all of those facets of the conflicting arguments over RFRA’s meaning to decide these cases.

The hearings will be scheduled for the final two weeks of March.  The Court has consolidated the petitions in the cases for briefing, and has ordered two sets of briefs to be filed jointly by two sets of challengers, and then a single brief by the federal government, plus two reply briefs.  The briefing is scheduled to be completed by March 11.

Recommended Citation: Lyle Denniston, The legal fate of Obamacare: Round 4, SCOTUSblog (Dec. 11, 2015, 6:07 PM),