JURIST Guest Columnist Jessica L. Waters of American University discusses the implications of the Supreme Court granting certiorari to hear consolidated ACA cases…

In early November the United States Supreme Court granted certiorari in a group of consolidated cases challenging the applicability of the Affordable Care Act’s (ACA) contraceptive mandate. The challenges which come in the wake of the court’s 2014 decision in Burwell v. Hobby Lobby, are brought by non-profit employers who have religious objections to providing health insurance coverage for contraception.

First some background. The ACA requires most employers with 50 or more employees to provide their employees with health insurance plans that cover preventative health services, including FDA-approved prescription contraceptive methods such as the birth control pill and the IUD [PDF]. However, the ACA contains both an “exemption” and an “accommodation” for certain religious employers.

The exemption for “religious employers” is a complete one: such employers do not have to provide contraceptive coverage. However “religious employer” is narrowly defined as an organization that “1) [h]as the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization [under federal law]”. The exemption is further narrowed by the requirement that it only applies to “churches, their integrated auxiliaries and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.”

The “accommodation” is available to some non-profit organizations. The accommodation allows a non-profit organization to self-certify to the government that it is a non-profit organization that has a religious objection to providing contraceptive coverage. If it so certifies the organization’s employees can still receive contraceptive coverage but the objecting organization does not have to directly provide that coverage.

In 2014, two organizations—Hobby Lobby Stores and Conestoga Wood Specialties—challenged the contraceptive mandate. Hobby Lobby and Conestoga argued that they had religious objections to proving contraceptive coverage but because they did not fall under the exemption or the accommodation, they would be forced to pay monetary fines for non-compliance with the mandate. Having to choose between providing contraceptive coverage or paying the fines, they argued, would violate their religious beliefs under the Religious Freedom Restoration Act (RFRA). The court agreed. In a multi-step RFRA analysis the court first held that the organizations’ religious liberty rights were substantially burdened because failure to comply with the mandate would “force[] them to pay an enormous sum of money” for noncompliance.

Given this burden, the court then turned to the questions of (1) whether the mandate furthered a compelling governmental interest; and (2) whether the mandate was the “least restrictive means” of furthering that interest. Holding that the mandate was not the least restrictive means, the court took note of the non-profit accommodation. The accommodation, the court said, was evidence that there was a way to provide women with contraceptive coverage while not requiring the employers to directly provide that coverage.

That brings us to the current cases before the court. On November 6, 2015, the court granted cert in seven cases; the petitioners are non-profit institutions such as religious orders (Priests for Life, Little Sisters of the Poor Home for the Aged) and colleges/universities (Southern Narazene University, Geneva College). Each case raises the question of whether the contraceptive mandate and the current accommodation for non-profit organizations violate RFRA.

The fact that each of the petitioners has religious objections to providing contraceptive coverage is not in dispute. Rather the controversy centers on the mechanics of the accommodation. When triggered the accommodation “exempts objecting employers from any obligation to provide contraceptive coverage” [PDF]. However, given the government interest in “employees of these entities hav[ing] precisely the same access” to contraception as employees of non-religious organizations, the accommodation requires that third parties (such as the insurance provider, rather than the employer itself) pay for the contraceptive coverage [PDF].

The petitioners’ basic argument is that by certifying to the government that they object to providing contraceptive coverage, they are in fact becoming complicit in the provision of that coverage. It is the act of filing the certification, they argue, that triggers the third party coverage of contraception. For example, Geneva College argues, “Upon executing an objection form or notice, Geneva’s involvement in abortifacient coverage begins, rather than ends. The precise items that Geneva objects to causing coverage for, will, by operation of the accommodation, be covered for Geneva’s own health plan participants with the health plan that Geneva provides [PDF].” Priests for Life similarly argues “pursuant to this ‘accommodation,’ Petitioners will play a direct, central and indispensable role in facilitating the government’s objective of promoting the use of contraceptive services required by the mandate, contrary to Petitioners’ religious beliefs [PDF].”

Much as in Hobby Lobby, the court will be charged with determining, under RFRA, (1) whether the mandate and accommodation substantially burden the petitioners’ religious liberty rights, and if so, (2) whether they further a compelling governmental interest and (3) are the least restrictive means of furthering that interest.

On the first question, the petitioners will likely face a tougher battle than Hobby Lobby andConestoga did. Hobby Lobby and Conestoga, because they did not fall within the exemption or the accommodation, were able to point to the hefty fines they would incur for non-compliance. In contrast, the petitioners in the instant cases do fall squarely within the accommodation, so they will need to convince the court that the certification methods (which would remove the need for compliance or paying fines) are inherently burdensome. In order for the petitioners to prevail, the court would need to accept, at least on some level, that the certification itself renders the petitioners complicit in the provision of contraceptive coverage.

Regarding the government interest, Hobby Lobby may prove instructive. There the government argued that the mandate served the government interests of promoting public health and gender equality. The court did not directly address the question of the strength of those interests but rather “assumed that the interest in guaranteeing cost-free access to the … contraceptive methods [was] compelling within the meaning of RFRA.” It would be difficult for the court to backtrack from this “assumption.”

Finally, on the third question, the petitioners will need to demonstrate that there are other less-restrictive means of accommodating religious non-profits. Two points deserve mention. First, while in Hobby Lobby the court noted that the accommodation was one way to accommodate employers’ religious beliefs, it was careful to note, “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.” Second, shortly after Hobby Lobby was decided, Wheaton College filed an emergency injunction petition with the court, arguing that one of the certification methods in the accommodation was impermissibly burdensome.

That case foreshadowed the claims currently before the court. While because of the emergency injunction posture, the court did not decide the merits of Wheaton College’s claim, it did side with Wheaton—essentially permitting Wheaton to avoid filing the form it objected to. Tellingly, however, Justices Sotomayor, Ginsburg and Kagan sharply dissented from that order, noting “the accommodation is permissible under RFRA because it is the least restrictive means of furthering the Government’s compelling interests in public health and women’s well-being.” Given this apparent divide at the court, it is likely that the court’s decision in these cases will largely hinge on the question of whether the accommodation does indeed meet RFRA’s demand that the government find the least restrictive means of meeting its professed interest in protecting public health and gender equality.

Jessica Waters is the Associate Dean for Undergraduate Education in American University’s School of Public Affairs and is also a faculty member in the Department of Justice, Law and Criminology and an adjunct faculty member at the Washington College of Law. She specializes in reproductive rights law. She has recently focused on questions related to the legal impact of women’s medical decisions during pregnancy and childbirth, employment-based conscience protections for reproductive health care providers, and the reproductive rights of employees working for religiously affiliated employers.

Suggested citation: Jessica Waters, Supreme Court Granted Certiorari to Address Consolidated Affordable Care Cases, JURIST – Academic Commentary, December 12, 2015, http://jurist.org/forum/2015/11/jessica-waters-aca-challenges.php.