Supreme Court to Weigh Contraceptive-Coverage Mandate for Religious Schools

By Mark Walsh — November 06, 2015 4 min read
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The U.S. Supreme Court on Friday agreed to hear the appeals of numerous religious schools and colleges that object on faith grounds to complying with the so-called contraceptive-coverage mandate of the Affordable Care Act.

Among the appeals granted was one by the Roman Catholic Archdiocese of Washington and several K-12 Catholic schools in and around the nation’s capital, which have raised a religious objection to the health-care law’s requirement that health-insurance plans cover certain forms of contraception.

While the Affordable Care Act exempts churches from the requirement, other religious organizations, including schools, colleges, and nursing homes, are not exempt. President Barack Obama’s administration has sought to accommodate religious organizations that object to the requirement by having them sign a form so that an insurance company or third-party administrator can handle the contraceptive coverage.

Some religious organizations accepted the accommodation, but many have not, leading to a flurry a lawsuits against the administration. One of the suits was by the Washington Archdiocese, which was joined by the Catholic University of America, and Archbishop Carroll High School in the nation’s capital; Don Bosco Cristo Rey High School in Takoma Park, Md.; and Mary of Nazareth Roman Catholic Elementary School in Darnestown, Md.

In their appeal in Roman Catholic Archbishop of Washington v. Burwell (Case No. 14-1505), the schools and other Washington-area religious organizations argued that a federal appeals court’s decision against them conflicts with the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores Inc., which held that the government substantially burdens the free exercise of religion of closely held corporations when it forces them to “engage in conduct that seriously violates their religious beliefs” on pain of “substantial” penalties.

“This case is only about whether the government can commandeer [religious non-profit organizations] and their health plans as vehicles for delivering abortifacient and contraceptive coverage in violation of their religion,” says the appeal by the Washington archdiocese.

In an affidavit filed at an earlier stage, Michael Friel, the principal of Mary of Nazareth elementary school, said the school does not meet the federal definition of a “religious employer” and thus is not exempt from the contraceptive mandate.

The school’s employees receive health insurance through the Archdiocese of Washington’s group health plan, which has historically excluded coverage for abortion, contraception, and sterilization in keeping with Catholic doctrine, the affidavit said.

The Obama administration’s purported “accommodation” for religious groups, Friel says, is unacceptable because it still “forces Mary of Nazareth to take actions that facilitate access to products and services antithetical to the Catholic faith,” Friel said in the affidavit.

The high court also accepted appeals raising the same issue from several higher education institutions, including Houston Baptist University, East Texas Baptist University, Westminster Theological Seminary, Geneva College, Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America Christian University.

The justices also granted review of several cases involving other religious non-profits, most notably Little Sisters of the Poor Home for the Aged v. Burwell (No. 15-1505), which involves a Denver facility for Roman Catholic nuns.

“The right of the Little Sisters to practice their religion as they understand it hangs in the balance,” says their appeal.

In a brief filed in the Archdiocese of Washington case, the Obama administration said the accommodation it has offered non-profit religious organizations is “entirely consistent” with the Hobby Lobby decision and the Religious Freedom Restoration Act, also cited by the religious groups.

The Hobby Lobby decision “was premised on the availability of the accommodation and ... did not suggest that objecting employers may prevent their employees from receiving contraceptive coverage from third parties willing to provide it,” U.S. Solicitor General Donald B. Verrilli Jr. said in brief filed in August.

However, in a later brief, in the Little Sisters of the Poor case, the Obama acknowledged that a circuit split had developed and it agreed the justices should take up the issue. While several federal appeals courts have rejected the arguments of the religious groups, the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled in September that some religious organizations could show that their objection to the accommodation resulted in a substantial burden on their religious beliefs, in violation of RFRA.

The Supreme Court said the seven separate cases it granted would be consolidated, but it did not indicate how much argument time would be provided. The court said in a letter to the lawyers in the case that it expected the arguments to be in its March session.

A version of this news article first appeared in The School Law Blog.