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By General Counsel K. Hollyn Hollman

Hollman HeadshotFrom its beginning, the Affordable Care Act’s contraceptive mandate received strong support from women’s health care advocates and strong opposition from some religious groups. The mandate requires most health care plans to provide women access to all FDA-approved birth control without any out-of-pocket costs. The purpose, of course, is to advance the ACA’s emphasis on no-cost preventative health care services. The implementation of the mandate recognizes that birth control is an issue that often involves strong religious opinions, especially regarding contraceptives that some believe act as abortifacients.

In fact, religious employers (houses of worship and denominational associations) are exempt from the mandate, though certainly many would choose to provide the services. In addition, religiously affiliated nonprofit organizations (such as some colleges, hospitals and charities) that oppose contraceptives may opt out of providing them through an accommodation. The accommodation, which involves giving notice of the religious objection, shifts the burden and cost of contraceptives from the organization to the insurance provider, with costs in some situations recoverable from the government. The employee would still receive the health care benefit, and the religious objection would be respected.

Despite the government’s efforts to advance the health care needs of women and protect religious liberty interests, challenges to the mandate have been vigorously pursued in a variety of contexts by for-profit and nonprofit employers. Prior to Burwell v. Hobby Lobby (2014), for-profit businesses were not eligible for the religious nonprofit accommodation but were required to provide contraceptive coverage. After the U.S. Supreme Court upheld Hobby Lobby’s Religious Freedom Restoration Act (RFRA) claim that compliance with the contraceptive mandate would be a substantial burden on the owners’ religious beliefs, HHS amended the rules to allow closely held businesses to utilize this accommodation. Meanwhile, some religiously affiliated employers challenged the accommodation as inadequate.

While many religious nonprofits do not oppose the accommodation, about 50 cases of objectors have been steadily working their way through the federal court system. They challenge the accommodation by arguing that submitting a written objection — a two-page form to the insurance provider or a letter to HHS — is a substantial burden on their religious beliefs because this objection makes them complicit in facilitating access by their employees or students to the objectionable contraceptives. While many of the cases had initial success in the district courts, they have not fared well on appeal.

Now pending before the U.S. Supreme Court are seven* petitions seeking review of decisions in appellate cases which rejected the religious nonprofits’ RFRA claims that officially registering an objection is a substantial burden on their religious beliefs. The petitioners object to the ACA’s contraceptive mandate and reject the accommodation created for them.

Under RFRA, once the Court found that the mandate was a substantial burden on Hobby Lobby, the company could have won in one of two ways: a finding that the government did not have a compelling interest in improving women’s access to contraceptives or that the government had not employed the least restrictive means to achieve its goal. The Court chose the second path: “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” This other approach is the accommodation for religious nonprofits. The question now is whether that accommodation can be successfully challenged under RFRA.

The 2nd, 3rd, 5th, 6th, 7th, 10th and D.C. Circuit Courts** have all rejected this argument, finding that federal law requires coverage of contraceptives, not the religious group’s written objection. In short, these courts have found that the accommodation does not require the plaintiffs to provide or facilitate access to contraceptives. Instead, the accommodation relieves the plaintiffs of the obligation to provide, pay for or facilitate contraceptive coverage. The plaintiffs have no right under RFRA to challenge the independent conduct of third-party insurance providers, according to the court decisions.

The consistency of results in these cases weighs against the U.S. Supreme Court granting review. In general, the Court is more likely to grant petitions when the circuit courts have reached different conclusions on the same issue. The opportunity, however, for defining the boundaries of RFRA to resolve these and other cases may convince the Court to grant one or more of these petitions.

From the July/August 2015 Report from the Capital. Click here to read the next story.

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*In the print edition of this column, it says there are six petitions pending. A seventh was filed August 11, after publication.

**The print edition of this column does not mention the 2nd circuit. It rejected the argument on August 7, after publication. Click here to read more about that case.