U.S. Supreme Court

Chemerinsky: How will SCOTUS rule in contraceptive coverage case?

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Erwin Chemerinsky

Erwin Chemerinsky.

As happens so often, Supreme Court Justice Anthony Kennedy is almost certainly the key to the outcome in Zubik v. Burwell, the cases concerning the contraceptive mandate as applied to nonprofit institutions that are affiliated with religions.

The oral argument, which was held on March 23, left in doubt whether Justice Kennedy will vote with the four liberal justices to create a 5-3 majority to uphold the government regulations, or with the three conservative justices to create a 4-4 tie.

On Tuesday, March 29, the Court gave a strong indication that it is likely split 4-4 when it took the very unusual step of issuing an order suggesting an alternative and asking for briefing about it.

The Patient Protection and Affordable Care Act required that the Department of Health and Human Services promulgate regulations to ensure that employer-provided health insurance includes coverage for preventative health care for women. One aspect of these rules concerns contraceptive coverage. Religious institutions that oppose contraception, such as the Catholic Church, do not have to provide this coverage to their employees.

For-profit companies that employ more than 50 people must provide insurance coverage for the 20 types of contraceptives approved by the Food and Drug Administration for women. In 2014, in Burwell v. Hobby Lobby, the Supreme Court ruled 5-4 that this violated a federal law—the Religious Freedom Restoration Act—when applied to a family-owned business that objected on religious grounds to providing contraceptive coverage.

Finally, nonprofit institutions that are affiliated with religions that oppose contraception—like a Catholic university—can get out of this requirement by filing a form attesting to this with the insurance provider or the Department of Health and Human Services. Then, at no cost to the employer, the insurance provider and the federal government must provide contraceptive coverage for women employees. The insurance provider must supply services under a plan that is separate and distinct from the objecting employer’s insurance plan.

Employers object, however, that this makes them “complicit” in the provision of contraceptives. Their filing of the form leads to the provision of contraceptives to women. They claim that this violates the Religious Freedom Restoration Act, which prohibits the federal government from substantially burdening a person’s religious beliefs unless its action is necessary to achieve a compelling government purpose.

Seven federal courts of appeals rejected this argument and only one accepted it. Seven Circuits concluded that the burden on religious beliefs is minimal, if not non-existent. The institution only has to file a paper with the federal government or the insurance provider and it is relieved of all responsibility, and all cost, of providing contraceptive coverage for it women employees.

The United States Court of Appeals for the District of Columbia Circuit was typical of these courts when it declared in Priests for Life v. U.S. Department of Health and Human Services: “We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs’ religious exercise under RFRA. All Plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form. 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. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms.

“The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.”

The religiously affiliated nonprofit institutions argue to the Supreme Court that their action in filing the form leads to the provision of contraceptives that violate their religious beliefs. They contend that this makes them complicit and this complicity is a substantial burdening of their religions.

The United States Court of Appeals for the Eighth Circuit, the only federal court of appeals to accept this argument, declared in Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services: “[In light of the challengers] sincerely held religious beliefs, we conclude that compelling their participation in the accommodation process by threat of severe monetary penalty is a substantial burden on their exercise of religion.” The religiously affiliated nonprofit institutions argue to the Supreme Court that their insurance plan is being “hijacked” by the federal government to provide insurance.

The case thus requires the Supreme Court to confront the question of what is a substantial burden on religion. When is complicity enough to be such a substantial burden? Is the requirement for filling out a form enough? How far does the complicity argument extend? Could an employer insist as a condition of employment that employees cannot spend any of their salary on contraception? Otherwise, the employers can say that they would be complicit since it is their money that is being used for this purpose.

Also, even if there is a substantial burdening of religion, the court must face the question as to whether the government meets strict scrutiny. For more than 50 years, the Supreme Court has held that the right to purchase and use contraceptives is a fundamental right. Is there any less restrictive alternative? Interestingly, in Hobby Lobby two years ago, Justice Samuel A. Alito’s majority opinion pointed to exactly the approach used for nonprofits as a less restrictive alternative that might be used for close corporations. Now the question is whether that praised alternative itself violates the Religious Freedom Restoration Act.

At the oral argument on March 23, it was clear that Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan will rule in favor of the United States government and reject the argument that the contraceptive mandate is a substantial burdening of religion. Chief Justice John G. Roberts Jr. and Justice Alito were equally clear through their questions that they will rule in favor of the religiously affiliated not for profit institutions. Justice Clarence Thomas asked no questions, but it is assumed that he will be with the conservative justices, as he was in Hobby Lobby two years ago.

Justice Kennedy’s questions were harder to read, though at one point he referred to the health insurance plans being “hijacked” by the federal government. This is the language of the challengers. But overall his questions left doubt as to which way he will rule.

If Justice Kennedy joins the conservatives, it will be a 4-4 tie. When the justices tie, it means the lower court decision is affirmed, without opinion, by an evenly divided Court. The problem here is that the lower courts are split. This would mean that in most of the country these employers would have to follow the federal law, but in at least one area they would not. Instead of affirming the lower court, the Supreme Court could put the cases over for re-argument next year. But there seems little likelihood that there will be a ninth justice next term.

Thus, on March 29, the justices instead suggested an alternative approach and asked for additional briefing. The parties were asked to try to devise a way to ensure that contraceptive coverage is available for the employees, through the nonprofits’ insurer, but without the institutions having to file a notice with the insurance carrier or the government. The order issued by the justices gave an example: The nonprofits affiliated with religion could enter a contract with a health insurer to cover their employees, but specify that the coverage does not include the types of contraceptives that the employer objects to on religious grounds. The notice to employees about contraceptive coverage would be made by the insurance company.

The parties also were invited to develop other proposals. The briefs are due on April 12 and reply briefs are due on April 20.

I cannot think of another instance where the court has taken such a step of suggesting an alternative and asking for briefing on it. In all likelihood, this reflects a court that is divided 4-4 and looking for a way to resolve the split among the circuits.

The cases are among the most important of the term and pose a basic question: Absent financial cost or some greater involvement, is simply facilitating someone else exercising a constitutional right an impermissible burden on religion?

Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

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