Why Supreme Court is taking up Obamacare contraceptive mandate again

By agreeing Friday to hear a new case on the Obama contraception mandate, the Supreme Court will consider a different aspect of religious freedom and workers' rights.

Larry Downing/Reuters/File
Protesters rally at the steps of the Supreme Court as arguments begin to challenge the Affordable Care Act's requirement that employers provide coverage for contraception as part of an employee's health care, Washington, in this March 25, photo.

The United States Supreme Court has agreed to examine whether a government accommodation goes far enough in protecting the religious liberty of nonprofit church groups that object to portions of the contraception mandate in Obamacare.

In a brief order on Friday, the high court announced that it would consolidate seven cases to decide the issue. The action sets the stage for another major Supreme Court decision delineating the scope of religious freedom in the face of a national health-care mandate that grants considerable rights to workers through government-imposed insurance policies.

The Affordable Care Act requires employers to provide their workers with cost-free access to a full range of birth-control methods – including three methods that are highly offensive to certain religious groups that believe life begins at conception.

Recognizing the religious sensitivity of the issue, the Obama administration granted a complete exemption from compliance for houses of worship.

But nonprofit religious groups and business owners who run their companies in accord with religious principles were required to fully comply with the contraception mandate in the group health insurance plans they fund for their employees.

Religious business owners sued, and in June 2014 the Supreme Court ruled in a case called Burwell v. Hobby Lobby that the government must provide an accommodation to avoid violating the business owners’ religious beliefs.

In the meantime, the government had begun offering an accommodation to religious nonprofit groups such as hospitals and colleges that voiced similar objections. But the nonprofit groups rejected the accommodation, saying it didn’t go far enough.

The initial accommodation required religious objectors to complete a certification form that would instruct the insurance provider that it must deliver cost-free contraception services in lieu of the objector.

After complaints, the government offered an alternative. The alternative accommodation involved notifying the government of the religious objection, as well as informing the government of the group’s health insurance plan name, type of plan, and contact information.

But that, also, did not satisfy the religious objectors. They said the accommodations did not adequately separate them from the contraceptives provision.

The religious objectors said they would still be complicit in providing immoral services to their employees. Such forced complicity, they say, violates their right of religious conscience and their right to freely practice their faith.

They aren’t arguing that others must embrace their beliefs. Instead, their lawsuits are based on the principle that the US government should not coerce religious adherents into violating their sincerely held religious convictions.

The Obama administration argues that any residual burden on religious faith from the accommodation is too attenuated from the actual provision of contraceptive services to be legally significant.

Under the administration’s alternative, once the Department of Health and Human Services is advised of the religious objection, government officials would notify the group’s health insurance company and arrange for the insurance company to provide cost-free contraceptives to any employees of the religious nonprofit group who want those services.

At the heart of the dispute is a fundamental clash between religious rights and workers’ rights.

On one side are religious groups seeking a right to practice their faith without facing government coercion – including massive fines – to violate sincerely held beliefs about the sanctity of human life and when life begins.

The other side focuses on the rights granted under Obamacare to each employee to receive a full range of cost-free contraceptives.

Of the eight federal appeals courts that have issued decisions on the question, seven have sided with the Obama administration, ruling that being required to notify the government of a religious objection does not pose a severe burden on one’s religious exercise.

One appeals court panel, from the St. Louis-based Eighth Circuit, has ruled that the government must provide a more expansive accommodation for religious nonprofit groups.

It concluded that the government’s suggested accommodation violated the federal Religious Freedom Restoration Act, and that the US government had other ways to provide cost-free contraceptives to workers that would not involve religious nonprofit groups in something they consider immoral.

Among those listed as plaintiffs in the granted seven cases are an order of nuns from Denver who run Little Sisters of the Poor Mullen Home for the Aged, the Roman Catholic Archbishop of Washington, the Bishop of the Roman Catholic Diocese of Pittsburgh, East Texas Baptist University, and Southern Nazarene University.

“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 at the Becket Fund for Religious Liberty, said in statement.

“The Little Sisters should not have to fight their own government to get an exemption it has already given to thousands of other employers, including Exxon, Pepsi Cola Bottling Company, and Boeing. 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,” Mr. Rienzi said.

Lawyers with the American Civil Liberties Union approach the case from a different perspective.

“We fight 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,” Louise Melling, deputy legal director of the ACLU, said in a statement.

“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,” Ms. Melling said.

Oral argument is expected early next year, with a decision by late June.

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