Supreme Court Weighs Contraceptive Mandate Opposed by Religious Schools

By Mark Walsh — March 23, 2016 4 min read
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The U.S. Supreme Court appeared sharply divided on Wednesday in a major showdown over whether religious schools, colleges, and other organizations must take action if they seek to opt out of providing contraceptive care to their female employees or students under the Affordable Care Act.

Chief Justice John G. Roberts Jr. repeatedly referred to the federal government as “hijacking” the insurance plans of religious employers to force them to be complicit in the contraceptive coverage.

“It seems to me that that’s an accurate description of what the government wants to do,” Roberts said.

When Justice Anthony M. Kennedy, late in the argument, picked up on the idea of a government “hijack” of religious employers’ health plans, it appeared the court was headed for a 4-4 tie in the cases known as Zubik v. Burwell (No. 14-1418).

That would leave lower court rulings in place. All but one of the nine federal appeals courts to have ruled on the issue have sided with President Barack Obama’s administration by holding that an accommodation offered to religious employers does not violate their religious-freedom rights.

The case stems from the Affordable Care Act’s requirement that most large employers must offer group health plans with “minimum essential coverage,” which has been interpreted by the Department of Health and Human Services to include coverage of contraception.

Churches and some other religious organizations (church auxiliaries and the religious activities of religious orders) are exempt from the contraceptive mandate, but HHS declined to exempt many other religious employers, including schools, colleges, nursing facilities, and other charitable groups.

Under the disputed accommodation, those organizations must opt out of the program by informing the federal government in writing of their religious objections or else face fines.

The groups, which raise moral objections to offering certain forms of contraception, contend that the government’s accommodation would make them complicit in providing such care.

“The problem is we have to fill out a form, and the consequence of filling out that form is that we are being treated differently” from the churches and other groups that are categorically exempt, Paul D. Clement, the lawyer representing the Little Sisters of the Poor Home for the Aged, one of the religious employers that is not exempt.

Eight members of the Little Sisters order were present in the courtroom for the 90-minute argument, and hundreds more nuns demonstrated outside the court building, along with a smaller number of supporters of the administration.

Noel J. Francisco, the lawyer representing Roman Catholic schools in dioceses of Washington, Pittsburgh, and Erie, Pa., sought to point out an inconsistency in how the government treats such schools for the purposes of either the exemption or the accommodation.

“There is a Catholic school on the west side of town that has to comply” with the mandate, he said. But before he could finish his point, he was cut off by a question from Justice Ruth Bader Ginsburg.

The point, as explained in his brief and my preview story, is that some Catholic schools have to comply with the mandate and some don’t, based on how they are organized within the Archdiocese of Washington.

Chief Justice Roberts returned to that point later by noting that the Catholic Charities of Pittsburgh had to comply with the contraceptive mandate, while the Catholic Charities of Erie was exempt.

U.S. Solicitor General Donald B. Verrilli Jr., defending the mandate, said, “The government made a judgment that as a categorical matter, it wasn’t willing to extend the exemption to all religious nonprofits, as was requested, but it, instead, would use this accommodation, which we thought was the best way that we could ... protect their religious liberty.”

Justice Samuel A. Alito Jr. also was sympathetic to the religious employers. Justice Clarence Thomas didn’t ask any questions, but his past positions on the Affordable Care Act in the 2014 decision known as Burwell v. Hobby Lobby Stores Inc., which allowed closely held companies to opt out of the contraceptive mandate, suggest he would side with the religious employers as well.

The court’s liberal bloc, which dissented in Hobby Lobby, appeared to side with the government.

“I thought there was a very strong tradition in this country, which is that when it comes to religious exercises, churches are special,” Justice Elena Kagan told Francisco. “And if you’re saying that every time Congress gives an exemption to churches and synagogues and mosques, that they have to open that up to all religious people, then the effect of that is that Congress just decides not to give an exemption at all.”

Ginsburg said the government “has another interest at stake.”

“As you know, the original health-care plan did not provide these covered services for women, and [the government] saw a compelling interest there, a need that was marginally ignored up until then,” she said.

A ruling in the case is expected by late June, though the vacancy on the court resulting from Justice Antonin Scalia’s death last month could prompt the court to order reargument if the justices are deadlocked.

But that, of course, depends on having the vacancy filled, the timing of which remains uncertain when Senate Republicans say they will not consider President Obama’s nomination of Merrick Garland to the empty seat.

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