Student Well-Being

High Court Weighs Birth-Control Mandate Opposed by Religious Schools

By Mark Walsh — March 28, 2016 4 min read
Nuns with the Little Sisters of the Poor, including Sister Celestine, left, and Sister Jeanne Veronique, center, rally outside the U.S. Supreme Court as it hears arguments on the birth-control mandate in health-care plans.
  • Save to favorites
  • Print

The U.S. Supreme Court appeared sharply divided last week in a major showdown over whether religious schools, colleges, and other groups must take action if they seek to opt out of providing contraceptive care to their female employees or students under the Affordable Care Act.

During oral arguments in the case, 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 March 23 arguments, picked up on the idea of a government “hijack” of religious employers’ health plans, it appeared the court, with the vacancy left by the death of Justice Antonin Scalia, was headed for a 4-4 tie in the group of 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 beeninterpreted by the U.S. 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 nonprofits.

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

Moral Objection

The religious groups, which have 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, a religious employer that is not exempt, told the justices.

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 the 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.

The point, as explained in his brief, is that some Catholic schools have to comply with the mandate and others don’t, based on how they are organized within their dioceses. (Some are part of the main organizational structure of the diocese, and some aren’t.)

Roberts returned to that point by noting that Catholic Charities of Pittsburgh had to comply with the contraceptive mandate, while 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, woulduse 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.

‘A Compelling Interest’

“This is a case in which a great array of religious groups ... have said that this presents an unprecedented threat to religious liberty in this country,” Alito said, referring to the opt-out requirement.

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 toside 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.”

Justice Ruth Bader 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, referring to the HHS rules that require contraceptive coverage.

A ruling is expected by late June.

A version of this article appeared in the March 30, 2016 edition of Education Week as High Court Weighing Birth-Control Mandate

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Professional Development Webinar
Strategies for Improving Student Outcomes with Teacher-Student Relationships
Explore strategies for strengthening teacher-student relationships and hear how districts are putting these methods into practice to support positive student outcomes.
Content provided by Panorama Education
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Classroom Technology Webinar
Transform Teaching and Learning with AI
Increase productivity and support innovative teaching with AI in the classroom.
Content provided by Promethean
Curriculum Webinar Computer Science Education Movement Gathers Momentum. How Should Schools React?
Discover how schools can expand opportunities for students to study computer science education.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Student Well-Being Opinion ‘The Timing Is Critical’: How Schools Can Help Refugee Students
Two clinical psychologists suggest several low-cost and effective interventions to help welcome refugee and immigrant families.
Jeffrey P. Winer & Luna A. Mulder
5 min read
Conceptual illustration of a garden growing from adversity
DigitalVision Vectors/Getty
Student Well-Being Half of School Nurses Report Being Harassed, Threatened
The past few years have been tough for school nurses for a few different reasons.
2 min read
Missy Gendron RN, Lewiston High School nurse, unpacks pooled COVID-19 testing materials on Tuesday, Sept. 21, 2021, at Lewiston High School in Lewiston, Maine. Gendron is going to be doing a walk through with staff next week. Classroom pooled testing is planned for the week following. Consent for COVID-19 pooled testing is being collected from parents now.
Missy Gendron, a nurse at Lewiston High School in Maine, unpacks COVID-19 testing materials in September 2021.
Andree Kehn/Sun Journal via AP
Student Well-Being School Sports Participation Drops, Raising Concern About 'Physical Learning Loss'
But interest in e-sports and inclusive teams is rising.
5 min read
The Michigan City High School Girls Varsity Basketball team hosted a Future Wolves basketball camp for elementary and middle school girls on Saturday, March 5, 2022 at the high school.
The varsity girls basketball team at Michigan City High School in Michigan City, Ind., hosted a basketball camp for elementary and middle school girls last spring.
Kelley Smith/The News Dispatch via AP
Student Well-Being Biden's National Strategy on Hunger: What It Means for Schools
The administration seeks more access to free school meals and nutritious foods. But a universal free meals bill is stalled in Congress.
4 min read
President Joe Biden speaks during the White House Conference on Hunger, Nutrition, and Health, at the Ronald Reagan Building, Wednesday, Sept. 28, 2022, in Washington.
President Joe Biden speaks during the White House Conference on Hunger, Nutrition, and Health in Washington on Sept. 28.
Evan Vucci/AP