Guess what? The Supreme Court of the United States (SCOTUS) agreed late last year to hear cases challenging the Affordable Care Act’s Contraception Mandate. No wait. Didn’t that already happen in 2014? You’re probably thinking of Burwell v. Hobby Lobby. (Click here if you missed my post on that case.) Well, if you thought the issue was resolved, think again. There’s a new wrinkle and a new challenge. Actually there are 7 challenges. 7 religious non-profit organizations challenged the mandate — even after Hobby Lobby, and even after the accommodations the federal government provided these employers–and those 7 cases have been consolidated for review by SCOTUS on a date to be determined. So what’s the new wrinkle and what is it’s likely impact? Let’s talk amongst ourselves and discuss– after the jump as always…
Now just so we’re all clear on everything, let’s make sure everyone has the background . First, a brief recap of the contraception mandate and Burwell v Hobby Lobby et al (aka The Hobby Lobby case): The ACA mandate requires coverage of 20 FDA-approved methods. 4 of them were the subject of the challenge in Hobby Lobby, which involved two closely held for-profit companies run by devout fundamentalist Christians. The employers argued that the mandate as applied to the 4 challenged birth control methods unduly interfered with their sincerely held religious beliefs. The Court accepted the factual evidence supporting the contention that those 4 methods effectively acted to facilitate abortion after conception. The ruling therefore did not impact the mandate with respect to the other 16 methods.
The challenge in the Hobby Lobby case was under the Religious Freedom Restoration Act of 1993, not the First Amendment. The upcoming challenges are also grounded in the RFRA. So let’s have a brief recap of that as well. Under the RFRA one must show a substantial interference with a sincerely held religious belief. The government must then show that the law or measure in question meets a compelling interest and that the means in question is the least restrictive means available for meeting that interest. SCOTUS, while assuming that providing women affordable access to birth control is a compelling government interest, agreed with the employers that the method being used by the government was not the least restrictive means available to meet that interest. The government was already providing an exemption to religious non-profit organizations that completing a form requesting exemption based on religious grounds, after which the government would work directly with the organization’s insurer, which in turn would provide women access to contraception. The Court therefore reasoned that the same exemption could easily be extended to for-profit organizations. Therefore the mandate was not the least restrictive means available.
These 7 consolidated cases go a step further, and they involve religious not-for-profit organizations. Now wait a minute. They are already exempt. So what’s the problem? To qualify for the exemption they have to fill out a form. They don’t want to fill out the form. What’s the problem with filling out the form? In a nutshell their argument is that filling out the form makes them complicit in the sin of abortion. If they don’t fill out the form they are subjected to fines of up to $100 a day for each person to whom they should otherwise be offering the coverage but are not. Given the Supreme Court’s reasoning in the Hobby Lobby ruling, the government should not have trouble convincing the Court that providing women affordable access to FDA-approved contraceptive methods is a compelling interest. Filling out a form for an exemption does not seem to be an unreasonable requirement. The question is whether that is the least restrictive means available to ensure that all eligible women are able to gain access to contraception– or in some cases the four methods in question. The religious organizations involved in the upcoming consolidated appeal argue that it is not.
So what would be a less restrictive method than asking these organizations to fill out a simple form? Here are some alternatives that they have suggested either that the government allow female employees to obtain their own contraceptive coverage through health insurance “exchanges” under the ACA or that the government itself provide birth-control services directly to the female employees. Now, practically speaking a suggested alternative is not feasible it effectively may not be less restrictive. Can the government argue — and prove–that the suggested alternative are so impracticable as to support its argument that it already using the least restrictive means to afford women access to contraception?
Now, one more point: Assume for the moment that these religious organizations win. What is the likely impact on women and on employers? Will women be denied access to contraception? My personal opinion (for what it’s worth) is “No”. It just means that religious non-profit organizations or closely held corporations owned by those holding these particular religious beliefs would not be involved. The government would likely create another means for ensuring women’s access to contraception. If these employers win, can any employer claim entitlement to an exemption on religious grounds? Probably not. Remember, the Hobby Lobby case did indicate that a closely held (i.e. private corporation with relatively few owners) could claim this exemption under the RFRA. It also indicated that a publicly held corporations would in all likelihood not be able to prove a sincere religious belief on the part of the entire company. Furthermore, saying something and being able to prove it are two very different things. A company that never before showed any indication of sincere religious beliefs as defined by the SCOTUS in the Hobby Lobby case might run into some problems proving entitlement to such an exemption.
Stay tuned later this year to hear how SCOTUS actually rules on this latest challenge.
In the meantime, Happy 2016 to all!
Disclaimer: This post and all its contents are for educational/informational purposes only, are not intended as legal advice, do not create an attorney-client relationship, and are not intended to replace consultation with competent employment counsel in the state(s) in which you employ people.
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