When a split Supreme Court last June exempted some companies from providing female employees with some contraceptive coverage because of the employers’ religious objections, Justice Ruth Bader Ginsburg sounded the alarm.
The 5-to-4 decision in Burwell v. Hobby Lobby was one of “startling breadth,” Ginsburg wrote. “The court, I fear, has ventured into a minefield, by its immoderate reading” of the Religious Freedom Restoration Act (RFRA).
Ginsburg’s warnings might yet be proved right. Gretchen Borchelt, vice president for Health and Reproductive Rights at the National Women’s Law Center, said the Hobby Lobby decision’s protection of religious objections since has been cited by a paramedic student who objected to a vaccination requirement and has been raised as a defense in a child labor case.
But in what many expect to be the next major test of the Affordable Care Act’s contraceptive mandate — a challenge over whether the government has done enough to accommodate the objections of religiously affiliated nonprofit organizations such as universities, hospitals and charities — the Hobby Lobby decision so far has aided the Obama administration.
Three circuit courts of appeals have examined the issue, and they have been unanimous in ruling that the government’s solution of shifting the burden to the groups’ insurers allows women no-cost access to contraceptives without infringing on the religious rights of the objecting nonprofits.
Last week, a split panel of the U.S. Court of Appeals for the 7th Circuit in Chicago turned aside complaints from the University of Notre Dame. And the entire U.S. Court of Appeals for the D.C. Circuit voted 6 to 3 not to reconsider a decision by one of its panels, which had ruled in favor of the Obama administration in a challenge brought by a group called Priests for Life and the Archdiocese of Washington.
The U.S. Court of Appeals for the 3rd Circuit in Philadelphia has made a similar decision in cases brought by Catholic organizations in Pennsylvania.
“The decisions are consistent with Hobby Lobby,” said Borchelt. “We think it’s clear there’s no substantial burden” on the group’s religious beliefs because of the accommodation the government offers.
Lori Windham, senior counsel at the Becket Fund for Religious Liberty, disagrees and notes there are challenges yet to be decided in appeals courts around the country.
“We believe that the Supreme Court will take up one of these cases next fall,” she said.
The Affordable Care Act requires that women covered by group health plans be able to obtain contraceptives at no additional cost. Originally, only religious organizations such as churches were exceptions. But after protests from religious nonprofit groups, the government devised an accommodation.
To be eligible, a religious organization must certify to its insurance company that it opposes coverage for contraceptives, or it must send a letter to the government saying so and provide the name of its insurance company. The insurers and government take over from there to provide the services.
But the religious groups say either of those options serve as a “trigger” that allows the contraceptives to be provided and makes the groups complicit in what they consider sin.
In November, the D.C. Circuit panel unanimously rejected that reasoning.
“All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form,” Circuit Judge Cornelia Pillard wrote. “That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law.”
“Religious nonprofits that opt out are excused from playing any role in the provision of contraception services, and they remain free to condemn contraception in the clearest terms,” she wrote.
In the Hobby Lobby ruling, the Supreme Court’s five-member majority said the mandate requiring some companies to provide some contraceptive coverage violated the protections of RFRA. The law says government must have a compelling reason to substantially burden religious beliefs and the requirement be the least restrictive means for achieving the government’s goal.
Pillard noted that it was the lack of an accommodation for private companies whose owners object to providing contraceptives that led to the Hobby Lobby ruling, although the majority did not rule on whether the government’s accommodation would suffice.
Three of the D.C. Circuit’s judges wanted to reconsider the panel’s decision and rule for the plaintiffs.
Circuit Judge Janice Rogers Brown said religious groups decide whether their beliefs are compromised by government regulation. “The panel conceded plaintiffs sincerely ‘believe that the regulatory framework makes them complicit in the provision of contraception,’ ” Brown wrote. “That acknowledgment should end our inquiry into the substance of their beliefs.”
But in the Notre Dame case, Circuit Judge David F. Hamilton said it was not the sincerity of the groups’ beliefs being questioned but their legal arguments.
“This is an issue not of moral philosophy but of federal law,” Hamilton wrote. “Federal courts are not required to treat Notre Dame’s erroneous legal interpretation as beyond their reach—even if that interpretation is also a sincere and religious belief. Notre Dame is not entitled to nullify the law’s benefits for others based on this mistake of law, which is the foundation of its claim of a substantial burden.”
The panel was reconsidering, at the Supreme Court’s direction, an earlier decision against Notre Dame. But it said the Hobby Lobby decision only reinforced its previous ruling.
The justices’ interest in the issue could become clear soon. Justice Samuel A. Alito Jr., who is designated to handle special requests from the 3rd Circuit, last month granted the Pennsylvania organizations a temporary delay in providing the services. The groups are preparing a petition to ask the court to take their cases.
Alito asked the federal government to respond and said the delay would last only until further order from him or the full court.
In a letter last week, Solicitor General Donald B. Verrilli Jr., who represents the government, reminded the justices of the recent victories in the lower courts.