The Next Wave of Contraceptive Challenges Hits the Appellate Courts

So far, the Obama administration has been undefeated in defending the accommodation process to the birth control benefit in the Affordable Care Act. How long will that streak last?

So far, the Obama administration has been undefeated in defending the accommodation process to the birth control benefit in the Affordable Care Act. How long will that streak last? Shutterstock

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

The notoriously conservative U.S. Court of Appeals for the Fifth Circuit heard arguments on Tuesday by religious universities that claim the exemption process for opting out of complying with the birth control benefit in the Affordable Care Act is an unacceptable burden on their religious rights.

The case, which involves Houston Baptist University and East Texas Baptist University, is one of several similar legal challenges filed by religiously affiliated nonprofit schools and hospitals challenging the ACA’s accommodation process. That process, amended once already by the administration, simply requires institutions that claim a religious objection to the birth control benefit to notify the administration of their objection, at which point the administration then takes on the task of coordinating coverage between insurance providers and the individuals who want it. But unlike last summer’s wave of litigation by for-profit companies looking to avoid complying with the ACA, which ultimately resulted in the Obama administration’s loss before the Roberts Court in Burwell v. Hobby Lobby, federal appeals courts have so far been resolute in their rejection of claims that the process for those institutions asserting a religious objection to contraception is a burden, unanimously ruling in favor of the Obama administration.

There remains some reason to hope the Obama administration will be more successful in these challenges than it was in Hobby Lobby. So far, no federal appeals court has ruled against the Obama administration’s accommodation process. Also, despite the administration’s loss last summer in Hobby Lobby, the Supreme Court’s plurality opinion grounded its decision to allow some for-profit employers to opt out of contraception coverage on the existence, and presumed reasonableness, of the nonprofit accommodation process. That should all be good news for the administration and employees who want access to the full scope of insurance coverage provided by the law.

But, just like we saw in last summer’s contraception coverage fight, it ultimately doesn’t matter if the Obama administration has the law on its side. Even in the federal courts, the battle over the birth control benefit has always first and foremost been a political one.

Last week’s arguments at the Fifth Circuit came not quite a month after the Roberts Court revived a nearly identical lawsuit by the University of Notre Dame, granting the university’s request to vacate a decision by the Seventh Circuit Court of Appeals that ruled the accommodation process didn’t burden any of Notre Dame’s rights. Meanwhile, the Tenth Circuit Court of Appeals is also currently mulling over nearly identical claims from the Little Sisters of the Poor, a Denver-based organization that runs nursing homes and faces no risk of ever having its insurance plans cover contraception because they are exempted church plans. Regardless, the Little Sisters filed a lawsuit challenging the accommodation process, and the Tenth Circuit has, inexplicably, kept the case alive.

During this week’s arguments, Department of Justice attorney Adam Jed tried to drive home the point to the panel of judges that those challenging the accommodation process are not merely trying to deprive their employees of contraceptive coverage—they are trying to prevent anyone else from providing them with contraception coverage as well. ”If the plaintiffs don’t want to provide the coverage, all they have to do is raise their hands and say it’s something they don’t want to do,” Jed told the panel of Fifth Circuit judges. “They are eligible not to do it.”

But, Jed continued, the nonprofits’ further objection to insurance companies or third-party administrators independently providing such birth control is “a novel concept” under the Religious Freedom Restoration Act, the federal statute those challenging the birth control benefit are relying on. Jed compared the religious objectors’ position to that of a Jewish worker who objects to working on the Sabbath. “Someone who doesn’t want to work on the Sabbath raises his hands, and as a consequence he doesn’t have to work,” Jed said. “The employer gets somebody else to work. But the plaintiffs are saying, ‘Not only am I not going to work on the Sabbath, but I’m going to filibuster anyone else working.’”

A federal district court in Texas had previously ruled in favor of the universities, preventing the administration from enforcing the benefit against them, and at the end of Tuesday’s arguments, it was unclear if Jed had persuaded any the three judges on the Fifth Circuit panel to overturn that lower court decision. Of the three judges considering the administration’s appeal, two were Democratic appointeesincluding Judge James Earl Graves Jr., an Obama appointee. But all appeared sympathetic to the challengers’ claim that regardless of how “novel” their interpretation of the law was, the Obama administration has exempted practically everyone but religious employers from complying with the birth control benefit and should therefore exempt religiously affiliated employers as well. An accommodation, the challengers pressed, was simply not enough to protect their religious liberties.

In the meantime, the Seventh Circuit Court of Appeals will hear arguments in the Notre Dame challenge later this month, while other nonprofit challenges are pending in the Third, Sixth, Seventh, Eighth, Tenth, and 11th circuit courts of appeals. Thanks to the Roberts Court for breathing new life into the birth control challenges by nonprofits not once but twice so far, it’s clear that conservatives and their allies in the federal courts plan to run the gauntlet of these legal challenges until the administration either gives up and offers exemptions from the birth control benefit for every employer who wants one, or until the conservatives on the Roberts Court kill off the benefit altogether.