The contraceptives lawsuits could go to SCOTUS. Here’s what you should know.

February 4, 2013

Welcome to Health Reform Watch, Sarah Kliff’s regular look at how the Affordable Care Act is changing the American health-care system — and being changed by it. You can reach Sarah with questions, comments and suggestions here. Check back every Monday, Wednesday and Friday at 2 p.m. for the latest edition.

The new contraceptives rules published by the White House on Friday nearly guarantee widespread access to birth control for anyone with an employer-sponsored health plan. They also guarantee that the legal challenges to the coverage mandate will continue unabated.

"We were extremely disappointed with this inadequate proposal," Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, told reporters. His group represents both private employers and faith-based nonprofits. "This is not what many of our clients were hoping and praying for: that they would be given a way of not being subject to the mandate at all."

This all means you're likely to hear about these legal challenges for quite some time now; many legal experts expect the issue to rise to the Supreme Court. Without further ado, here's a guide to the arguments being made on each side - and how well they're faring with the judges.


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The lawsuits essentially fall into two buckets: Those brought by for-profit business owners (the Hobby Lobbys of the world) and those filed by faith-based non-profits, such as Catholic hospitals and universities.

The secular cases are moving faster right now for one reason: The vast majority of the challenges from religious non-profits are in a holding pattern, as the administration included a safe harbor for groups like these, one that stretches until August 2013.

For secular businesses though, there's no need to wait: The mandate applies to them right now. And they have essentially made two arguments about why they should be part of the definition of an eligible organization

The first relies on the Religious Freedom Restoration Act (RFRA), a law passed in 1993,  during the Clinton administration. Under RFRA, individuals can challenge federal laws that place a "substantial burden" on their ability to exercise a sincere religious belief.

This is what the owners of Hobby Lobby argued in one of the best-known lawsuits, filed in September.

"The mandate compels Plaintiffs to provide employees with insurance coverage they believe implicates them in an immoral practice," the brief contends. "The mandate pressures Plaintiffs by exacting a steep price for maintaining their beliefs. The Greens can continue to exercise their faith only by dropping insurance and facing penalties of about $26 million per year."

Even if the plaintiffs can prove substantial burden, they're still not out of the woods. The law can still stand if the government proves the law achieves a compelling government interest that cannot be achieved in a less restrictive way.

Here's a bit from the government's response to Hobby Lobby, where it urges the court to dismiss the challenge. The Justice Department argues on behalf of the administration that the law does not represent a substantial burden. But even if it did, the filing continues:

There can be no question that this compelling interest in the promotion of public health is furthered by the regulations at issue here. As explained in the interim final regulations, the primary predicted benefit of the regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.”

That's the part on compelling interest but it's not all. The government also must show that its pursuing that compelling interest in the least restrictive way, which is the argument they make here:

Congress determined that the best way to achieve the goals of the ACA, including expanding preventive services coverage, was to utilize the existing employer-based system...through which women will face minimal logistical and administrative obstacles to receiving coverage of their care.

Those are, at the most basic level, one set of questions at the heart of the contraceptives' challenges: Is the law a substantial burden and, if so, is it one that the government has a compelling interest to move forward with anyway?

There is, however, another set of questions posed under the First Amendment. Like RFRA, the First Amendment is meant to protect religious freedom, but does so with a different standard: Laws must be neutral and generally applicable to all Americans, as to not target one specific group.

In the Hobby Lobby case, plaintiffs argue that this isn't true for the contraceptive mandate. The federal government has, for example, allowed "grandfathered" plans to dodge this provision, which is what this chunk of the Hobby Lobby argument deals with:

While the purpose of the mandate is to increase access to all FDA-approved contraceptives, well over 100 million organizations and plans are categorically exempted from providing the mandated preventive services.  Thus, Defendants deliberately chose not to pursue their goal of increased contraceptive access with respect to a broad array of plans and individuals, while at the same time pursuing it against non-exempt religious objectors like Plaintiffs.

The federal government, for its part, argues that the law is neutral: While there are plans that have been grandfathered out, it's not on basis of religion. "The regulations are also generally applicable because they do not apply 'only against conduct motivated by religious belief,'" DOJ argues. "They apply to all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage."

Those are, in a nutshell, the arguments at the heart of the employer challenges. Judges across the country have reacted, so far, in really different ways. The federal appeals court in the Seventh and Eighth Circuits have granted preliminary injunctions to private companies, meaning the regulation gets put on hold for the companies who filed the challenge, until there's a ruling on the merits.

This is not a win for the mandate's opponents, but it is an indication that the court does see at least a possibility for the challengers to succeed.

In the Hobby Lobby case, the Tenth Circuit Court of Appeals denied a similar request: It would not stop the federal contraceptives mandate from coming into effect as it did not see a substantial likelihood of success.

It's possible that, when these circuit courts do rule on the merits, they will all come to the same conclusion. But with divergent ideas already being aired, legal scholars don't think it's likely. Conflicting opinions could set the stage for another Supreme Court challenge to the Affordable Care Act. And, much like its predecessor, its one that few ever expected to happen.

KLIFF NOTES: Today’s top health policy reads from around the Web:

A battle is brewing in Kentucky over who gets to fill a doctor's shoes. "As physician assistants and other midlevel health professionals fill growing gaps in primary health care, turf battles are erupting in many states over what they can and can't do in medical practices." Melinda Beck in the Wall Street Journal.

How will part-time workers fare under Obamacare? "Low-income workers are the primary target of Obamacare's expansion of health insurance to as many as 30 million people through Medicaid, subsidized private plans and new job-based health coverage. But the law's requirements for employers are leading some to consider cutting part-time workers' hours, raising questions about whether these workers will be better or worse off." Jeffrey Young in the Huffington Post.

Ohio Gov. John Kasich (R) will reveal his Medicaid expansion choice today. "If Ohio expands Medicaid, the state will fulfill an option under the federal Patient Protection and Affordable Care Act to provide coverage to adults living at up to 138 percent of the federal poverty level -- about $32,000 per year for a family of four and $15,400 per year for an individual." Sarah Jane Tribble in the Cleveland Park-Dealer. 

 

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