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Argument preview: Historic fight over religion and birth control (UPDATED)

UPDATED Thursday 12:10 p.m.   In response to suggestions from readers, updates have been made in this post’s discussion of several of the more technical provisions of the ACA birth-control mandate at issue before the Court next Wednesday.   Each change is noted in this way: the original version is left as it was, an update is inserted or added and is visible in bold-faced italics.  The blog very much appreciates the assistance.



The stubborn political fight over Obamacare rages on, now a major issue for presidential candidates, and yet the new health care law continues operating much as planned because it has largely survived repeated legal challenges.  Another, the fourth to reach the Supreme Court, will be heard by the Justices next week in a highly emotional battle over religion and women’s access to free birth control.

Next Wednesday, March 23, the Court will hold ninety minutes of oral argument on seven combined cases, all appealed by religious non-profit schools, colleges, hospitals, or charities, plus Roman Catholic clergy.  The only hearing on the Wednesday calendar, it will begin at 10 a.m.  At issue is the legality — under a federal law, not the Constitution —  of the Affordable Care Act’s requirement that a variety of birth control techniques and devices be made available at no cost to women of child-bearing age.

Although many of the supporters of those challenging the contraceptive rules have made clear that they would like the coming decision to bear the name of a genuinely sympathetic order of nuns, the Little Sisters of the Poor, the case actually will have the title of the first of the seven cases to reach the Supreme Court: Zubik v. Burwell.  That case gets its title from the Most Rev. David A. Zubik, the Roman Catholic bishop of Pittsburgh, and Sylvia Mathews Burwell, the government’s secretary of Health and Human Services.

(Attribution: The Becket Fund for Religious Liberty)

(Attribution: The Becket Fund for Religious Liberty)

Although some of the challengers had wanted the Court to hear a constitutional challenge to the mandate, the Justices declined to do so when they accepted the cases for review on November 6.  Instead, the cases will focus on whether the mandate violates a 1993 federal law, the Religious Freedom Restoration Act.  That is the same law that the Court applied two years ago to protect the religiously devout owners of closely held, for-profit businesses from having to provide birth control under the mandate to their female employees.  That was the decision in Burwell v. Hobby Lobby Stores.

The 1993 law, passed by Congress to overrule a prior Supreme Court decision limiting the rights of religious entities to pursue faith-based challenges to government policies and programs, bars the government from imposing a “substantial burden” on the exercise of religious beliefs, but allows such burdens if the policy or program is “the least restrictive means” that the government could use to achieve a “compelling government interest.”  (Originally, the law applies to actions of both the federal and state governments, but the Court in 1997 struck it down as a check on state governments.)

When Congress passed the Affordable Care Act in 2010, it stressed the importance of having access to services to prevent illness or medical conditions or complications, concluding that people would be more likely to seek those services if they did not have to pay for them.  The act mandated preventive services and health screenings for women, but did not spell out just what that would cover, instead leaving the task to federal agencies.

Those agencies borrowed from a list of contraceptive methods approved by the Food and Drug Administration, which includes various forms of birth control pills, devices, and methods.  Some religious employers, believing that at least some of those forms will bring about abortion, have faith-based objections to providing them to their employees or, in the case of religiously affiliated colleges, their students.

Under the mandate’s rules, a religious entity that engages actively in worship — a church, a synagogue, a mosque — is specifically exempted from the law.  For example, Bishop Zubik’s household employees are exempted from the law, but he is also the head of a diocese that includes organizations which are not exempted, such as the non-profit institutions now involved in the cases that will bear his name.  (UPDATE: This exemption is automatic if the institution qualifies as “a house of worship,” based on its internal organization.  But not everything that an organization that does conduct worship services gets the exemption: for example, some activities of the Little Sisters of the Poor are not exempted even though this order of nuns regularly conducts worship services for those it serves.)

Temporarily, there have also been exemptions for religious employers whose health plans pre-dated the ACA but, over time, those exemptions will run out.  The theory behind all exemptions, the government has said, was that it did not want to intrude on the exercise of religion by those whose faith opposes the use of specified contraceptives. For-profit businesses did not receive any exemptions from the mandate in the beginning.  (UPDATE: This exemption is not restricted to religious employers or to non-profits; it includes even profit-making businesses, too.  To be eligible, the employer must not have made any changes in its health plan since ACA was passed.  The government’s theory for this was that there was a need for a transition period.  Protection of religious rights was the rationale for an opt-out provision, but not for automatic exemption, as such. The “grandfathering” exemption at one time applied to some fifty-six percent of employees under their health benefits; that has recently fallen to twenty-five percent and is expected to continue falling.)

However, if such a (profit-making) business is owned by a small circle of religious individuals or families with religious objections to contraceptives, it gained a right to an exemption under the Court’s Hobby Lobby decision.  The government has since worked out a way out for businesses to seek an exemption. (UPDATE: Under this arrangement, a company, like a non-profit religious institution, may notify the government that it objects to the contraceptives, and the government then takes action to assure the coverage at no cost to the companies’ workers.)

The government has also insisted strenuously that free access to contraceptives was a policy goal of utmost importance, and it has worked from the first to assure that those services do become widely available to working women and female students of child-bearing age.

For non-profit institutions operated by religious entities, the contraceptive mandate provides not an exemption, as such, but an “accommodation.”  This is an opt-out provision that does require the non-profit to notify the government that the entity is eligible to be excluded from paying for or providing access to contraceptives to which it objects.  The government has always vowed to take the institution’s word for it that it does have such religious objections.

The government, reacting to action by the Supreme Court in a preliminary move in 2014 involving Wheaton College, a religious college in Illinois, has modified the specifics of the accommodation option.  Originally, it required the filing of a specified government form, which gave the government the institution’s permission to provide the free access to contraceptives.

When institutions objected to filing that form, the Court, in the Wheaton College order, allowed them to write a simple letter to the government claiming the exemption, without having to do anything to provide or pay for the contraceptives. (UPDATE: The government has now written that accommodation into its ACA mandate rules.)

That further attempt at accommodation, however, is at the heart of the seven cases now going before the Court.  The religious institutions are challenging that, too, with the argument that anything they do that assists the government in using their own employee benefit plans as a channel for contraceptives to their employees or students is as much a violation of their faith as a mandate to supply contraceptives directly.  Their lawyers have talked about the supposed “hijacking” of their benefit plans into the regime of the ACA mandate.

Even under the latest version of the accommodation, the challengers have contended, they must identify for the government the specific plan that serves their employees or students, and must give the government information on how to contact that plan.  Under the language of the Religious Freedom Restoration Act, they contend, that is not “the least restrictive means” of carrying out the mandate.

The government has refused to relax the accommodation any further, arguing that doing so would disrupt its ability to assure that contraceptives do become available across the nation for employees of non-exempt institutions.  The rationale of that government position is that the laws that protect religious freedom have never given those who object to a government policy veto power over how the government deals with “third parties” in carrying out such a program.

When a religious non-profit institution has handed over the management of its employee benefit plan to an outside insurer, that insurer is a third party with whom the government should be free to deal directly, according to the government.  It emphasizes that point by noting that it does not require religious non-profits that operate their own self-insured plans to take part in the contraceptives program, if they finance the plans themselves.  It would like them to do so voluntarily, it has said, but it has no means to make sure that that happens. (UPDATE: The self-insured plans that the government treats as voluntary participants in the mandate are only those that are treated as “church plans,” which has a specific technical definition under the federal law governing employee benefit plans — ERISA.)

At times, it appears that government officials, in refusing to find other ways to implement the mandate, are operating on a suspicion that the ultimate objective of some of the religious non-profits is to make sure that their employees or students simply do not have access to the pills, devices, and methods to which those institutions object.  The non-profits, disputing that implication, have insisted that they do not object to their employees or students having access, provided they do not obtain it through the institutions’ own plans.  Some institutions have suggested that the government agencies themselves could provide the contraceptives directly to the women.

As this dispute worked its way through lower courts, in scores of lawsuits, each federal court of appeals that confronted the controversy ruled for the government, finding that the accommodation was sufficient to break the link between contraceptives and the religious non-profits.

Then, in mid-September last year, the U.S. Court of Appeals for the Eighth Circuit, in two separate opinions dealing with challenges by religiously affiliated non-profit colleges, upheld those challenges.  The accommodation, that court concluded, was not “the least restrictive means” of implementing the contraceptives.  Those rulings, of course, produced the first split among the federal appeals courts, and practically guaranteed that, when the Supreme Court opened its new Term last October, it would agree to decide the controversy.  It did so in early November.  (The government has since appealed the Eighth Circuit decisions to the Supreme Court, but those cases will be held for the outcome in the granted cases.)

Because it opted to grant review of all seven cases then on its docket, the Court left it up to the lawyers involved to work out procedures to limit the number of briefs that would be filed, and who would argue the cases before the Court.  A very large stack of amici briefs have been filed.

The cases will go before an eight-member Court, with the place of the late Justice Antonia Scalia remaining vacant.  For next week’s public sittings, the Justices will take their new places on the bench; all but Chief Justice John G. Roberts, Jr., will change seats because Scalia was the most senior Justice in service and the eight others will move up one place in the order.  The rearrangement of seating follows the end of the official mourning period for Justice Scalia.

With the reduced number taking part, there is always at least the possibility that the Court would wind up with the Justices split four to four.  When that happens, the effect is to upheld the lower court decision (or decisions that are issued in a multiple-case review), but the result sets no precedent and there is no opinion from the Court explaining how or why it divided.

The Court normally is uncomfortable with such a split, because it essentially amounts to a waste of judges’ and lawyers’ efforts.  But that would be particularly awkward in this situation, because that would not resolve the conflict among the appeals courts on the validity of the ACA mandate.  Women in different states would have access, or not, depending upon what the prevailing judicial results were in their area.

The exact line-up of lawyers for Wednesday’s hearing apparently is not yet settled.  It will be announced later in the week, when the hearing list is released.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Scholars of Religious Liberty, Sarah Barringer Gordon, et al., in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]

Recommended Citation: Lyle Denniston, Argument preview: Historic fight over religion and birth control (UPDATED), SCOTUSblog (Mar. 16, 2016, 12:06 AM),