In late spring, the Roberts Court will hear the umpteenth challenge by conservatives to the Affordable Care Act, and the second specifically challenging the birth control benefit of the ACA.
These cases are confusing. Conservatives have filed hundreds of challenges; the cases involve tax and employee benefits law, which few lawyers even understand; and there has been significant political bluster along the lines of “the Obama administration forcing birth control on nuns.”
But they are important, because the Supreme Court will once again be balancing women’s rights to a full range of health-care benefits under the law against the “religious rights” of corporations and nonprofit organizations to deny those benefits. A win for conservatives will drastically reduce contraceptive coverage otherwise available under the ACA.
What are the cases the Supreme Court is going to decide?
Roe has collapsed and Texas is in chaos.
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There are seven cases before the Court. Three of them have been consolidated for one brief: (1) Zubik v. Burwell; (2) Priests for Life v. Department of Health and Human Services; and (3) Roman Catholic Archbishop of D.C. v. Burwell.
The remaining four cases were consolidated for a second brief: (1) East Texas Baptist University v. Burwell; (2) Southern Nazarene University v. Burwell; (3) Geneva College v. Burwell; and (4) Little Sisters of the Poor v. Burwell.
Petitioners filed their opening briefs with the Court earlier this month. The government will file its response on February 10.
Who are the challengers?
The challengers, or “petitioners,” are a group of religiously affiliated nonprofit organizations, mostly Catholic and evangelical Christian nonprofit schools like the Catholic University and Thomas Aquinas College.
What does that mean?
It means what it sounds like, for the most part. They are nonprofit organizations that are somehow affiliated with a particular religion. In the birth control benefit cases, they happen to all be evangelical Christian or Catholic. That’s probably not a coincidence, since the deluge of religious freedom cases with respect to reproductive and LGBTQ rights have been orchestrated by members of those denominations.
These organizations offer a variety of health insurance plans to their students and employees. Some offer group health insurance plans that they purchased through a commercial insurance carrier, like Aetna or Blue Cross. Others are self-insured, which means they provide health care to their students and employees, and pay for it out of their own coffers, but contract with third-party administrators for actual coverage. While the terms and names are different, the coverage is virtually identical.
Some of the organizations offer what are known as “church plans”—insurance plans that are for the benefit of employees of churches or other religious organizations. Church plans are covered under the Employee Retirement Income Security Act of 1974 (ERISA), which bars any government regulation of an employee benefit plan run by a church. This means that organizations with church plans don’t have to offer contraceptive coverage.
In other words, workers at organizations that offer health insurance through a church plan do not have a right to contraceptive access through their employer-provided plan. By contrast, employees who fall under the self-insured umbrella still have a right to contraceptive access through their employer-provided health-care plans; they just must access it through a third-party administrator.
What are petitioners complaining about?
The birth control benefit, of course.
The Affordable Care Act (ACA) requires most private health insurance plans to provide coverage for a wide range of preventive services. This includes prescription contraceptives approved by the FDA.
Including contraception as a preventive service sent the religious right into a frenzy. They complained that providing contraceptive coverage is a violation of their religious freedom under the Religious Freedom Restoration Act (RFRA).
The Obama administration set about trying to appease the birth control naysayers by offering a compromise, so it could accomplish its goal of providing contraception to women without co-pay but also remain respectful of the religious objectors’ beliefs.
The compromise was simple: Churches and other houses of worship could exclude contraceptive coverage from their health insurance plans.
Other organizations—religiously affiliated nonprofit organizations like the ones whose cases are pending before the Supreme Court—would be able to opt out of the birth control benefit by filling out Form 700 and passing it along their insurer (or third-party administrator, if they were self-insured). Form 700 would let their insurer know that they oppose contraception on religious grounds and refuse to provide coverage for it. The insurer (or third-party administrator) would then step in and provide contraceptive coverage.
That process for accommodating objections to the birth control benefit is being challenged by more than a dozen religious nonprofits, which argue that the form and notification requirements violate the Religious Freedom Restoration Act (RFRA).
In providing that coverage, insurance companies would notify all the nonprofit’s students and/or employees, as well as pay for that coverage out of the insurance company’s own pockets.
This seemed like a reasonable workaround. It would permit religious objectors to disentangle themselves from involvement in the process by which their employees and students could obtain contraceptive coverage if they wanted it.
Still, the religious nonprofits cried foul. Two in particular—Little Sisters of the Poor and Wheaton College—claimed that the task of filling out the form in and of itself was a violation of their religious freedom, and they filed lawsuits by the dozens.
And we, as a nation, rolled our eyes.
But the Supreme Court came up with another solution—a workaround to the workaround, so to speak. Religious nonprofits could send a letter to the Department of Health and Human Services notifying HHS that they objected to providing contraceptive coverage and let HHS sort it out.
According to petitioners, though, this workaround to the workaround is just as much a substantial burden on their religious freedom as the original one.
So what are we left with?
A group of religious nonprofits who don’t want simply to be disentangled from the provision of contraceptive coverage to their students and employees. They want to boycott the birth control benefit entirely, preventing their students and employees from obtaining that coverage at all.
Didn’t the U.S. Supreme Court already decide a big birth control benefit case? Wasn’t that Hobby Lobby?
Yes. The Court in Burwell v. Hobby Lobby ruled that closely held for-profit corporations could not be forced to comply with the birth control benefit by providing their employees health insurance plans that offer coverage for contraceptives.
How does Hobby Lobby relate to the religious nonprofit cases before the Court now?
They are tangentially related. The Supreme Court in Hobby Lobby basically said that Hobby Lobby should be granted an accommodation too. In July 2015, the Obama administration released final rules for employers claiming a religious objection to complying with the birth control benefit. Those rules extended to Hobby Lobby, and closely held corporations like it, the accommodation that had previously only been available to religious nonprofits.
What’s RFRA again?
RFRA is the Religious Freedom Restoration Act. It prohibits the government from imposing “substantial burdens” on a person’s religious exercise.
When a person—or corporation, because, remember, in the eyes of the law, corporations are people—files a lawsuit claiming that a particular law violates RFRA, the courts must determine whether or not the law imposes a “substantial burden” on religious freedom. If it does, the courts next must determine whether the government imposed the substantial burden in order to accomplish a really important goal, or a “compelling interest.” If it did, the courts finally must determine whether or not that substantial burden is the “least restrictive means” of accomplishing that really important goal.
What is the compelling interest in these cases?
The Obama administration has argued that the birth control benefit promotes women’s healthfulness and reduces inequality in health-care costs between women and men.
The legislative record on the ACA is replete with information about how women have been getting screwed in health-care services. Insurance companies engage in absurd shenanigans like declaring pregnancy a preexisting condition, for example; women pay 68 percent more than men for out-of-pocket medical costs. The birth control benefit, along with the other women’s health preventive care services included in the ACA, are intended to reduce those costs and bring the cost of women’s health care in parity with men’s.
What is the substantial burden in these cases?
That’s the million-dollar question. RFRA’s provisions don’t apply to simply any burden on religion. They apply to substantial burdens on religion. And whether or not a particular burden on religion is a substantial one is a legal question that courts must decide. Petitioners argue that the monetary sanctions for noncompliance are the burden—the millions of dollars the government will force them to pay if they refuse to comply with the law.
The Obama administration has responded that there is no burden on the petitioners’ rights because the petitioners don’t have to comply with the law at all if they don’t want to. They can apply for, and would likely be granted, an accommodation, in which case they would face no financial penalties, or even additional administrative costs related to coordinating contraceptive coverage. That’s the argument the Roberts Court is going to untangle.
It is true that courts are not allowed to question the sincerity of a particular religious belief. If petitioners say that filling out a form burdens their religion, then fine, the courts should accept that claim. Filling out a form burdens their religion. Courts have to take petitioners’ word for it. But they don’t have to take petitioners’ word as to the substantiality of the burden.
Petitioners in the seven cases each claim that the birth control benefit substantially burdens their religious freedom because it forces them to “facilitate” access to contraceptives and to pay exorbitant fines if they refuse. They also question whether or not the government’s stated interest in gender equality and women’s healthfulness is “compelling,” and contend that the government has not adopted the “least restrictive means” of accomplishing said goal.
Why do petitioners claim that filling out the form is a substantial burden?
Petitioners have argued that the task of filling out the form “triggers” or “facilitates” the ability of their employees to get coverage elsewhere. Petitioners may not be required to pay for or provide the coverage, but they claim that the self-certification process does not absolve them from “complicity in sin.” After all, the process still results in the delivery of contraceptive coverage to their employees and students from a third party.
“Petitioner[s] refuse to ‘comply’ with the contraception mandate by filing the ‘self-certification’ or ‘notification,’ since the submission of either document would result in the objectionable coverage being delivered to their employees and students in connection with their health plans,” reads one of the briefs filed with the Supreme Court.
But that’s not true.
As Seventh Circuit Court of Appeals judge Richard Posner pointed out when he rejected the trigger argument in University of Notre Dame v. Burwell, signing the form is a mere administrative exercise that doesn’t trigger, cause, or authorize employees to get contraception where they could not obtain it before. The employees and students of religious nonprofits are already entitled to that coverage through the ACA. The self-certification process simply identifies which organizations have declined to get involved in contraceptive delivery, so the government can hand off the responsibility to a third party. In other words, the employees and students are going to obtain birth control whether the organizations want it or not.
And that’s what petitioners oppose. Stripped down, their argument amounts to “We don’t want to be involved in providing contraception to our employees and we don’t want anyone else to provide it either.”
But the law does not permit petitioners to dictate the independent actions of third parties.
The petitioners even want to stop their insurers from providing contraceptive coverage absent any involvement from religious nonprofits. As one of the briefs explicitly says, “[P]etitioners’ faith precludes them from contracting with or offering health plans through any company that is authorized, obligated, or incentivized to deliver such coverage to their plan beneficiaries in connection with their health plans.” Simply put, the religious nonprofits don’t want to contract with any company that provides contraceptives.
Only one court of appeals, the Eighth Circuit, has bought the trigger argument. Not even the Fifth Circuit—the court that thinks if a woman has to drive hundreds of miles to get an abortion it’s fine because in Texas the roads are flat and she can speed—has been onboard.
What about the nuns? Why is the Obama administration forcing nuns to provide contraceptive coverage?
The Little Sisters of the Poor is a bit of a baffling case.
As Jessica Mason Pieklo has pointed out for Rewire, due to ERISA, the plan administrator for the Little Sisters has no legal duty to provide contraception. And there’s no way for the Obama administration to force the Little Sisters to do so:
[B]ecause these disputes center around employer-sponsored benefit plans, they fall under the umbrella of the Employee Retirement Income Security Act of 1974 (ERISA). According to the Obama administration, and further explained in this excellent piece by Sarah Posner, ERISA already bars any government regulation of an employee benefit plan run by a church. That prohibition on “church plans” is incorporated into the ACA. This means that, per the Obama administration, the plan administrator for the Little Sisters has no legal duty to provide the services at all, and there is no way to compel it to do otherwise. In other words, even if the Little Sisters loses its legal challenge to the mandate, it still won’t have to provide its employees with contraception coverage, and there’s nothing the administration can do about it.
So why are the Little Sisters even bothering to sue?
As Pieklo has pointed out, they are being used by conservative culture warriors to test the outer limits of what a substantial burden is. It’s a classic case of litigators choosing their plaintiffs carefully, much like conservatives did when they chose the “plump grandmas” to challenge abortion clinic buffer zones. If filling out paperwork is a substantial burden on religion, then “substantial burden” ceases to have any legal meaning.
“With the ‘substantial burden’ hurdle removed, complying with practically any law could be characterized as a religious objection and used by employers to avoid complying with a host of government regulations,” Pieklo writes.
What’s going to happen?
That’s the big question. When the Roberts Court ruled businesses like Hobby Lobby and Eden Foods could assert corporate religious objections to the birth control benefit, Justice Anthony Kennedy relied heavily on the existence and presumed reasonableness of the accommodation process to justify extending the same kind of break to other businesses in his opinion for the Court. That should suggest the accommodation is safe.
But almost immediately after issuing the Hobby Lobby decision, the Court turned around and told Wheaton College, one of the very first religiously affiliated nonprofits to object to the accommodation, that it would likely be successful on its claims the accommodation process also violates RFRA.
The Seventh Circuit Court of Appeals disagreed and refused to grant Wheaton College an injunction. And, like we said earlier, only one federal court of appeals has even accepted the nonprofits’ arguments. For a while, legal observers questioned whether the cases would even make it up to the Roberts Court, yet here we are. Maddening, isn’t it?
So who knows if the Roberts Court will uphold the process or not. But what we do know is that conservatives won’t stop mounting legal challenges to the birth control benefit, as long as it remains law.