New York Times

Supreme Court to Hear New Case on Contraception and Religion

November 7, 2015

by Adam Liptak

WASHINGTON — The Supreme Court on Friday once again entered the conflict between religious freedom and access to contraception, taking up a case about whether some religious employers must provide free insurance coverage for birth control.

The new case concerns religious objections to a requirement under the Affordable Care Act that employers provide coverage for contraception to their female workers or face fines. Houses of worship, including churches, temples and mosques, are automatically exempt from the requirement and do not have to file any paperwork. But the new case concerns a second category of institutions — nonprofit groups like schools and hospitals that are affiliated with religious organizations.

The Obama administration has offered them an accommodation — it allows the nonprofit groups to forgo paying for coverage and avoid fines if they inform their insurers, plan administrators or the government that they seek an exemption. But the groups challenging the arrangement say that filling out a form or sending a letter is unacceptable because it makes them complicit in conduct that violates their faith.

The case is the court’s second encounter with the contraception requirement and the fourth time it has considered an aspect of the health care law.

Among the challengers to the requirement is an order of nuns based in Baltimore called the Little Sisters of the Poor, which operates nursing homes around the country. The order objects to playing any role in providing any of the forms of contraception approved for women by the Food and Drug Administration. Other challengers object to contraception they say is tantamount to abortion, though there are substantial questions about whether they are correct as a matter of science.

Mark Rienzi, a lawyer with the Becket Fund for Religious Liberty, which represents the order, said the government should not be allowed to force the nuns to take any part in the contraception plan.

“It is ridiculous for the federal government to claim, in this day and age, that it can’t figure out how to distribute contraceptives without involving nuns and their health plans,” Mr. Rienzi said.

Women’s groups urged the court to sustain the contraception requirement. “Women deserve insurance coverage of birth control no matter where they work or go to school,” Gretchen Borchelt, vice president of the National Women’s Law Center, said in a statement. “It’s unfair and harmful for some employers and schools to use their religious beliefs to deny women vital health care that also makes them more economically secure.”

Louise Melling, a lawyer with the American Civil Liberties Union, said the groups challenging the accommodation had pushed their religious-liberty arguments too far.

“We fight every day to protect the constitutional right to freedom of religion, but that right does not extend to imposing your beliefs on others and discriminating against them,” she said in a statement. “If the court rules in favor of the employers in these cases, women will lose a benefit guaranteed by law and will literally be paying for their employers’ beliefs.”

In 2014, in Burwell v. Hobby Lobby Stores, the Supreme Court considered a third category of institutions: for-profit corporations run on religious principles. In a 5-to-4 decision, the court said that such companies could not be forced to provide coverage.

Justice Samuel A. Alito Jr., writing for the majority, said the middle-ground accommodation that the Obama administration had offered to nonprofit groups was a preferable alternative, though he did not say it was lawful. That alternative is at issue in the new case, a challenge under the Religious Freedom Restoration Act of 1993.

Under the 1993 law, government requirements that place a substantial burden on religious practices are subject to an exceptionally demanding form of judicial scrutiny. The two sides differ about whether the accommodation is such a burden. If it is, the government must show that the coverage requirement is “the least restrictive means of furthering” a “compelling governmental interest.”

Seven federal appeals courts have ruled for the government in challenges to the accommodation. Last November, for instance, Judge Cornelia T. L. Pillard, writing for a unanimous three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, ruled against the challengers at every step of the analysis.

The accommodation did not impose a substantial burden, Judge Pillard wrote. “All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form,” she wrote. “That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.”

She added that providing contraception coverage was a compelling interest, a point the Supreme Court assumed without deciding in the Hobby Lobby case. “The accommodation requires as little as it can from the objectors,” she added, “while still serving the government’s compelling interests.”

In September, however, a three-judge panel of the Eighth Circuit in St. Louis disagreed. Ruling at a preliminary stage of the case, it said the fines the challengers faced if they followed their faith were a substantial burden under the 1993 law.

Judge Roger L. Wollman, writing for the court, assumed that the government’s interest was compelling. But he said it could be accomplished in other ways. For instance, he wrote, “the government could pay for the distribution of contraceptives at community health centers, public clinics and hospitals with income-based support.”

After the Eighth Circuit ruled, the Obama administration told the Supreme Court that it should hear an appeal to resolve the disagreement among the appeals courts and to sustain what it called “a vital component of Congress’s effort to ensure that all Americans have full and equal access to preventive health services.” The Eighth Circuit, the administration said, had made “a sweeping and erroneous interpretation” of the 1993 law.

The administration urged the justices to hear just one appeal, from the District of Columbia Circuit’s ruling. They instead granted seven separate petitions, among them Zubik v. Burwell, No. 14-1418. The petitions will be consolidated, and the case will be argued this winter or spring and most likely decided by June.