Hobby Lobby didn’t end the birth control wars at the Supreme Court. Get ready for part two.
“The court, I fear, has ventured into a minefield,” is what Justice Ruth Bader Ginsburg wrote in her dissent in 2014, when the Supreme Court narrowly ruled that corporations could opt out of employees’ contraceptive coverage based on the employer’s religious objections.
One year later, the court is likely to revisit that minefield. This time, they’re being asked to consider the cases of non-profit organizations whose leadership objects to contraception, and who are challenging the Obama administration’s “accommodation” to the Affordable Care Act’s requirements to cover it. There are at least seven separate cases of nonprofit objectors before the Court.
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The question: Can the government ask nonprofit organizations with religious affiliations to sign a form saying they object to contraception? According to the government, it’s an opt-out form that means the employers don’t financially contribute. According to an attorney for one of the most high profile objectors, the form is a “permission slip for abortion drugs and contraceptives.” (Abortion is not actually covered, but some of the religious groups claim some forms of contraception are actually abortion.)
Houses of worship are fully exempt, but the nonprofits in question, which include many schools and hospitals, employ people of all different faiths. Under the accommodation, the employee still gets the coverage, but the insurer pays instead of the employer. “In our pluralistic society, that sort of substitution is an appropriate means of accommodating religious objectors while also protecting other important interests, such as women’s interest in full and equal health coverage,” the government wrote in its brief to the Supreme Court last week.
Like Hobby Lobby v. Burwell, these cases hinge on an interpretation of the Religious Freedom Restoration Act, which says the government cannot substantially burden religious freedom unless it furthers “a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”
Writing for the majority in Hobby Lobby, Justice Samuel Alito pointed to the nonprofit accommodation to argue that the government had other means to get employees contraception, but he stopped short of endorsing the plan entirely. The government has also offered Hobby Lobby the same accommodation, so the Supreme Court’s decision will affect thousands of employees.
These cases have been slowly traveling through the federal courts system since before Hobby Lobby was decided. For a while, it looked as if these groups had hit a wall. They had lost every case. A typical conclusion came from Seventh Circuit Judge Richard Posner, ruling on an objection from the University of Notre Dame: “Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs.”
Mark Rienzi, an attorney for one of the plaintiffs, a nursing home chain run by the Little Sisters of the Poor, begged to differ. “Some courts think they can look at this and say, ‘Sister, I know you think your God tells you that, but it doesn’t,’” he told msnbc. “Some courts say that’s not a role for judges.”
So far, that’s one federal appeals court – the 8th Circuit, which gave the nonprofit objectors a boost by ruling in their favor. A split in the federal circuit courts is usual grounds for the Supreme Court to step in to resolve the differences.
Last week, the Solicitor General, Donald Verrilli, sealed the deal by telling the Supreme Court that the decision meant a “circuit conflict on an important question of federal law that should be resolved by this court.”
But Verrilli suggested the court steer clear of the Little Sisters case, because of a complicated twist of insurance law, and take up a different case instead. The Little Sisters’ insurance plan, known informally as a “church plan” is actually fully exempt from the policy. That promoted the Becket Fund, a law firm that represented Hobby Lobby and is representing the Little Sisters, to issue a press release accusing the government of being “afraid of” the nuns. (The optics of the Obama administration going up against an order of nuns are inarguably good for the plaintiffs.)
The Little Sisters’ case got a different kind of boost last month: an unscheduled meeting with Pope Francis.
Rienzi, attorney for the Little Sisters, told msnbc he believes the Little Sisters case is actually the ideal vehicle. “It really shows the government acting its worst in that it’s willing to steamroll religion even if there’s no benefit,” he said.
Brigitte Amiri, senior staff attorney at the ACLU’s Reproductive Freedom Project, said, “They have to raise their hand, effectively, and say I have a religious objection to providing this service.” She added, “There are ordered rules that we live by in society, and we have to abide by them. Certain individuals can’t pick and choose which laws to abide by.”
Irin Carmon