Supreme Court Will Hear Contraceptive Mandate Cases

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By Mary Anne Pazanowski

Nov. 6 — The issue of whether religious nonprofit organizations will have to participate in an administration procedure to ensure their employees have access to insurance coverage for contraceptive products and services will be decided by the U.S. Supreme Court by late June.

The high court Nov. 6 granted review of seven of the petitions before it, guaranteeing that the court will hear the groups' challenges under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, to certain regulations implementing the Affordable Care Act's essential coverage provision (Zubik v. Burwell, U.S., No. 14-1418, review granted 11/6/15; Priests for Life v. HHS, U.S., No. 14-1453, review granted 11/6/15; Roman Catholic Archbishop of Washington v. Burwell, U.S., No. 14-1505, review granted 11/6/15; E. Tex. Baptist Univ. v. Burwell, U.S., No. 15-35, review granted 11/6/15; Little Sisters of the Poor Home for Aged, Denver, Colo. v. Burwell, U.S., No. 15-105, review granted 11/6/15; S. Nazarene Univ. v. Burwell, U.S., No. 15-119, review granted 11/6/15; Geneva Coll. v. Burwell, U.S., No. 15-191, review granted 11/6/15).

The question presented in the Priests for Life case is representative of the issues granted review: Does the contraceptive services mandate of the Affordable Care Act as applied to non-exempt, nonprofit religious organizations violate the 1993 Religious Freedom Restoration Act?

The cases are consolidated, and the court said it expects them to be argued in the March argument session.

Contraceptive Coverage Objections

Known as the contraceptive mandate, the regulations require large employers to provide employee health plans that cover contraceptive drugs, devices and related services at no cost to the employee.

Multiple faith-based organizations objected to the regulations, saying that their beliefs forbid them to use or support the use of birth control, sterilization and abortifacients for which they were required to provide coverage.

They said the problem might be resolved if the administration granted them the same exemption to the rules that it had granted religious employers, which the administration defined very narrowly to encompass only churches and other houses of worship.

Addressing the nonprofits' concerns, the administration designed an “accommodation” under which the groups could opt out of the coverage requirement by filling out and filing a government form stating their objections, saying that their objections were religious in nature and stating that they were nonprofit corporations.

The Supreme Court dialed back that requirement, saying the groups only had to send the Health and Human Services Department a written notice that their religious beliefs precluded them from providing the coverage. The groups didn't have to fill out and sign a form, the court said. Once a group took either action, the responsibility for providing the coverage would default to its insurance carrier or third-party administrator. The HHS later amended the rules to reflect the Supreme Court's holdings.

Accommodation Not Enough

The accommodation wasn't enough, the nonprofits said. By requiring them to sign a form or write a letter to the HHS, the government still was forcing them to participate in an action that they deemed “sinful,” namely, helping their employees to obtain methods of birth control. If they didn't sign the form or send the letter, they would be subject to “ruinous” fines, they said.

Thus, they said, the government's action substantially burdened their right to exercise their religion in compliance with their beliefs.

Numerous cases were filed by these objecting organizations throughout the country, and several made it to the federal appeals court level. All but one of the federal appeals courts—often over the objections of individual judges—found for the government, saying that the mandate, as modified by the accommodation, didn't substantially burden the nonprofits' religious exercise.

That changed in mid-September, when the U.S. Court of Appeals for the Eighth Circuit held that the accommodation violated RFRA with respect to a nonprofit religious organization (181 DLR A-5, 9/18/15).

In all, seven petitions for review were filed with the Supreme Court, asking it to consider the question.

Grant Was Expected

Court watchers told Bloomberg BNA in September that they expected the Supreme Court to grant review of the issue, and the only question was which case it would choose as its vehicle. The Little Sisters case widely was believed to be the front-runner, but the government—conceding that review was likely—argued for review of Catholic Archbishop of Washington instead.

The grant of all the petitions was unexpected, but it gives the court “a broad range of fact patterns to consider” in determining the applicability of the contraceptive mandate to these groups, Gretchen Borchelt, vice president for health and reproductive rights at the National Women's Law Center in Washington, told Bloomberg BNA Nov. 6.

She said it is interesting that the court limited its consideration to the RFRA issue, but added that it wasn't really surprising given the challengers' lack of success on constitutional claims, including claims that the mandate violates the First Amendment's religion clauses.

Borchelt said the NWLC is “optimistic that the court will stop these groups' efforts to take away benefits that are so important to the health and economic security” of women. NWLC has filed friend-of-the-court briefs in all the appeals court cases and plans to file one in the Supreme Court, Borchelt said.

Daniel Blomberg, legal counsel at the Becket Fund for Religious Liberty in Washington, told Bloomberg BNA Nov. 6 that, while he wasn't expecting all the petitions to be granted, the court's action “makes sense.”

There are several variations among the cases, which the court will have an opportunity to consider, Blomberg said. But the issue raised by all the petitions, and the one the court will rule on, is the argument that the government may use “the organizations' plans to violate their religious faith.”

Blomberg said the Supreme Court has considered the religious nonprofits' argument at several interim stages and has sided with the nonprofits every time. For example, the court in July 2014 said that the nonprofits didn't have to file a specific form in order to opt out of providing the coverage.

He said he considers that “a good sign” that the court will rule in favor of the nonprofits.

The Becket Fund represents several plaintiffs' groups in these cases, including the Little Sisters of the Poor.

Public Interest Groups

Several public interest groups weighed in on the court's action.

The American Civil Liberties Union's deputy legal director, Louise Melling, said in a news release that the ACLU fights “every day to protect the constitutional right to freedom of religion, but that right does not extend to imposing your beliefs on others and discriminating against them.”

“If the Court rules in favor of the employers in these cases, women will lose a benefit guaranteed by law and will literally be paying for their employers’ beliefs,” Melling said.

Dawn Laguens, executive vice president of the Planned Parenthood Action Fund, also in a Nov. 6 press release, said: “This case isn't about religious freedom—it's about trying to use a technicality to block women from accessing birth control. All women should have access to birth control without a copay, no matter where she works, lives, or how much money she makes.”

Planned Parenthood criticized “religious organizations, who are already exempt from the birth control provision of the ACA,” for “trying to argue they don't even have to complete basic paperwork.”

Laguens noted that the birth control mandate already has had a major impact, saying that “women now save $1.4 billion a year on birth control pills alone.”

Bloomberg Philanthropies, founded by former New York Mayor Michael Bloomberg (I), provides financial support for Planned Parenthood. Bloomberg is the founder and majority owner of Bloomberg BNA parent Bloomberg LP.

Heritage Foundation: Mandate Burdens Nonprofits

Heritage Foundation policy analyst Sarah Torre discussed the monetary burden placed on religious nonprofits by the mandate. The nonprofits “could face steep government penalties for noncompliance—up to $100 per employee per day,” she said in a statement provided to Bloomberg BNA.

“That's millions of dollars a year in government penalties diverted away from caring for the elderly poor, teaching students, and providing much-needed social services,” Torre said.

“The Little Sisters spend their lives taking care of the elderly poor—that is work our government should applaud, not punish,” Mark Rienzi, senior counsel of the Becket Fund, said in a news release.

“The Little Sisters should not have to fight their own government to get an exemption it has already given to thousands of other employers,” he said. “Nor should the government be allowed to say that the Sisters aren't ‘religious enough’ to merit the exemption that churches and other religious ministries have received.”

Judicial Crisis Network Chief Counsel Carrie Severino said in a news release that the “Administration can't be happy that the Term's most famous case will center around its attempts to strongarm nuns who have devoted their lives to caring for the homeless and poor.”

“It's high time the Supreme Court put a stop to the Obama Administration's policy of subjugating religious liberty to its own agenda,” she said.

The Supreme Court previously invalidated the contraceptive mandate with respect to for-profit, closely held corporations whose owners objected to providing the insurance coverage on religious grounds. In that decision, however, the court cited the lack of an accommodation for those employers as one of its reasons for finding that the mandate wasn't the least restrictive means for meeting the government's goal of ensuring universal access to birth control.

Oral argument will take place in March, though Blomberg told Bloomberg BNA that the exact date isn't yet set. The court sent a letter to all the parties, including the Becket Fund, asking them to provide the court with a briefing plan by Nov. 16.

Blomberg wasn't sure who would argue for the petitioners, saying that is yet to be determined.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bna.com

To contact the editor responsible for this story: Janey Cohen at jcohen@bna.com