The Supreme Court and Contraceptive Coverage—Take 2

Supreme Court
Flickr/Creative Commons – Andrew Raff

By Gregory M. Lipper

Today the Supreme Court granted review in seven challenges to the accommodation offered to those with religious objections to the Affordable Care Act’s contraceptive coverage regulations. I won’t rehash my earlier posts about why I (and seven of eight federal appeals courts) think that these challenges, brought under the Religious Freedom Restoration Act, are bunk. For now, a few observations about the cases and today’s cert grants:

1. These cases involve challenges to a religious accommodation, not the coverage requirement itself. In Burwell v. Hobby Lobby Stores, the Supreme Court said that the government couldn’t enforce the contraceptive coverage regulations against for-profit corporations with religious objections. The Court pointed to a less-restrictive alternative: the accommodation, offered to nonprofit organizations, through which the organization submits a written objection and government arranges for the objector’s insurance company or plan administrator to provide the coverage at no cost to either the objector or its employees. The plaintiffs in these cases are challenging the accommodation itself. By analogy, this is like a conscientious objector challenging the process for opting out of the draft.

2. Oddly enough, Hobby Lobby didn’t officially resolve RFRA challenges to the accommodation. You might think that since the Supreme Court’s decision in Hobby Lobby pointed to the accommodation as the less-restrictive alternative, then the Court must have also made clear that the accommodation itself complied with RFRA. But the majority opinion did not do so. Instead, after pointing to the accommodation as a less-restrictive alternative, the majority said, “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”

3. And/But: Justice Kennedy, the deciding vote in Hobby Lobby, suggested more clearly that the accommodation complies with RFRA. Although he joined the majority opinion, Justice Kennedy also wrote separately and appeared to bless the accommodation. Here’s what he said:

  • “That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.”
  • “Yet neither may that same [free exercise] unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”

If Justice Kennedy holds to his view in Hobby Lobby, then the plaintiffs in these cases will probably lose.

4. Although the plaintiffs in these cases are nonprofit organizations, the result will affect employees of for-profit corporations. As instructed by the Supreme Court in Hobby Lobby, the government extended the accommodation to closely held for-profit corporations such as Hobby Lobby. But neither Hobby Lobby nor the other for-profit plaintiffs have said that they will accept the accommodation, and most of them are represented by the same organizations representing the nonprofit challengers to the accommodation. So if the Supreme Court doesn’t uphold the accommodation as applied to nonprofit organizations, employees of objecting for-profit corporations will almost certainly go entirely without contraceptive coverage as well.

5. “[Y]ou are not entitled to your own facts….” Today the Becket Fund, which represents Little Sisters of the Poor and several other plaintiffs, issued a press release entitled “High Court to decide if Government can force nuns to provide contraceptives.” This is false—full stop. Under the accommodation, contraceptives are provided by the employer’s insurance company or plan administrator; employers aren’t paying for the insurance coverage, let alone handing out the insurance coverage, let alone handing out contraceptives themselves. Whether or not you think that the accommodation resolves employers’ religious objections, it is simply not true that—as a matter of fact—objecting nuns are required “to provide contraceptives.” (This is not, I should add, the first time that the Becket Fund has made this claim in a press release.) I will be curious to see whether Becket Fund repeats this claim in its briefs to the Court.

Greg Lipper is Senior Litigation Counsel at Americans United for Separation of Church and State. You can follow him on Twitter at @theglipper.

3 thoughts to “The Supreme Court and Contraceptive Coverage—Take 2”

  1. Thanks, Greg. What are your thoughts about compelling government interest in promoting free access to contraceptives? The majority in Hobby Lobby punted on that, and I think it could be important in the non-profit cases. On the one hand, promoting women’s equality in the workplace and ability to control their reproduction obviously seems compelling to me. But of course there are lots of gaps in the contraceptives mandate that could suggest that the government doesn’t see the interest as truly compelling. Then again, it seems unreasonable to suggest the government must fix a problem completely like a flip of the switch in order to meet the test of compelling government interest.

    Let me just also say that I was selfishly hoping SCOTUS wouldn’t grant cert because I have to finish a chapter on the mandate, and now it has to wait!

    1. Yes, your chapter is definitely going to be on ice for a while 🙂

      I think the DC Circuit’s opinion in Priests for Life did a good job of explaining why the coverage regs fulfill a compelling interest. And I don’t think the gaps undermine that interest, for three reasons.

      First, every law/rule/regulation has gaps. Even the race-discrimination provisions of Title VII, which even the Hobby Lobby majority recognized fulfilled a compelling interest, has significant gaps (employers with fewer than 15 employees are exempt). If contraceptive coverage weren’t compelling, then neither would the other forms of preventive care that fall under the same provision (including vaccines).

      Second, the gap that everyone points to (the grandfathering provision) is different in kind than the exemption sought in these RFRA cases. The grandfathering provision is necessarily temporary and transitional; even Hobby Lobby’s attorneys acknowledged during the litigation that grandfathering was not a viable solution in the long run. There’s a difference between phasing in a requirement, on the one hand, and granting a permanent exemption, on the other – and the latter is what the plaintiffs are seeking here.

      Third, if any gaps in coverage means that the government fails strict scrutiny under RFRA, then there are serious Establishment Clause problems. If a religious accommodation is required unless the government meets a test that is virtually impossible to meet, then the accommodation regime starts to look like an establishment, as the Supreme Court recognized in cases like Caldor and Cutter (and as Justice Kennedy recognized in his concurrence in Kiryas Joel).

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