Contraception cases are likely headed to the U.S. Supreme Court

The Eight Circuit Court of Appeals today became the first Court of Appeals to accept the view that an employer who provides an employee health insurance plan has a “religious liberty” not to be “complicit” in providing birth control and contraception to its employees by the simple act of filling out a form for an exemption that allows the employer not to have to pay for it. This is about paperwork. Contraception opt-out violates religious freedom: US appeals court:

ProtestorsA U.S. appeals court has ruled that President Barack Obama’s healthcare law violates the rights of religiously affiliated employers by forcing them to help provide contraceptive coverage even though they do not have to pay for it.

Parting ways with all other appeals courts that have considered the issue, the 8th U.S. Circuit Court of Appeals in St. Louis on Thursday issued a pair of decisions upholding orders by two lower courts barring the government from enforcing the law’s contraceptive provisions against a group of religiously affiliated employers.

The law allows religiously affiliated non-profit employers to opt out of paying for contraceptive coverage directly. Once they do, insurers must provide the coverage separately at no extra cost to the employee. Employers that do not follow the opt-out process face a financial penalty.

Many employers have filed lawsuits against the government, claiming that the opt-out process [itself] makes them complicit in providing contraceptive coverage. Before Thursday, however, every appeals court that considered the issue has rejected that argument.

Heartland Christian College and addiction services non-profit CNS International Ministries Inc, both based in Missouri, and Dordt College and Cornerstone University, both in Iowa, filed the lawsuits before the 8th Circuit.

They object to emergency contraceptives, including Plan B from Teva Pharmaceutical Industries Ltd (TEVA.TA), which they believe are equivalent to abortion.

The employers say the opt-out provision violates a 1993 federal law called the Religious Freedom Restoration Act.

Circuit Judge Roger Wollman, who wrote Thursday’s decisions on behalf of a three-judge panel, said the court must defer to the employers’ “sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.”

The cases are Dordt College et al v. Burwell, No. 14-2726, and Sharpe Holdings Inc et al v. U.S. Department of Human Services et al, No. 14-1507, both in the U.S. Court of Appeals for the 8th Circuit.

Back in July, the much ballyhooed Little Sisters of the Poor asserted an identical claim which was rejected by the Tenth Circuit Court of Appeals. Court rules against Little Sisters of the Poor in contraceptive case:

A federal appeals court ruled that there is a limit to how far the government must bend to accommodate religious objections to the federal healthcare exchange.

The U.S. 10th Circuit Court of Appeals ruled that if the Colorado-based Little Sisters of the Poor want to refuse contraceptive coverage to their employees, they must sign a waiver to be exempted, and that such a waiver is not a substantial burden on the nuns’ religious freedom.

In response to the U.S. Supreme Court decision in Burwell v. Hobby Lobby Stores. Inc.

[O]n Aug. 27, 2014, Affordable Care Act administrators created a waiver for religious nonprofits that would grant them an exemption from contraceptive coverage.

But the Little Sisters of the Poor, who run the Mullen Home for the Aged in Denver, argued before a three-judge panel of the 10th Circuit that the waiver itself  both crosses the nuns’ moral boundary by endorsing contraceptives and gives control of their healthcare program to the government.

A U.S. District Court judge in December denied the Little Sisters of the Poor’s objection to the waiver, but they were granted an injunction by the U.S. Supreme Court and the case went to the 10th Circuit.

The objection was unusual, according to the unsigned opinion handed down Tuesday.

“Most religious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious exercise,” according to the decision, noting that most cases begin with prisoners demanding a religious right.

But in the Little Sisters of the Poor case and accompanying suits by self-insured religious objectors and religious universities, the government made clear attempts to offer a religious exemption, the judges wrote.

“Although plaintiffs allege the administrative tasks required to opt out of the mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity,” according to the opinion.

The judges said the difference between Hobby Lobby and the Little Sisters of the Poor is that Hobby Lobby faced fines for every day of noncompliance.

The Little Sisters of the Poor faced no such burden, the judges ruled.

This conflict among the Circuits now ensures that the contraception appeals currently pending before the U.S. Supreme Court, and the appeal from the Eighth Circuit Court of Appeals decision above certain to be filed, means that the U.S. Supreme Court will be be taking up these cases to clarify the extent of its Hobby Lobby decision in the next term, beginning in October. A decision is likely to come in late June if 2016.

UPDATE: Lyle Denniston at SCOTUSblog reports, Appeals courts now split on birth control mandate; Ian Millhiser reports, The Supreme Court Might Make The Hobby Lobby Decision Even Worse.

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