Obamacare’s Contraception Mandate, Post-Scalia

Little_sisters_of_the_poor_logo-250x188by Christina Claxton ’16

“Uterus is back on the menu at the Supreme Court,” wrote Slate’s Dahlia Lithwick in her November 6 dispatch on the day’s big judicial news. The Supreme Court had agreed to hear a follow-up to Hobby Lobby, the case that established a religious right for “closely held” for-profit companies. This latest “clash between religious freedom claims and the rights of secular Americans” is, Lithwick wrote, “an emblem of what is sure to be one of the biggest themes of the coming years” at the Court.

The new case, Zubik v. Burwell, challenges the accommodation to the Contraceptive Mandate of the Affordable Care Act (ACA), under which health insurance plans must cover contraceptive services for women free of charge. In Burwell v. Hobby Lobby Stores, Inc. (2014), two for-profit corporations seeking an exemption from the mandate on religious grounds were told by the Court said that they were entitled to the same exemption as religious non-profits. The exemption allows these groups to sign a waiver indicating their religious objection to contraceptive coverage, thereby triggering a process by which their insurance company would provide the coverage instead.

Zubik deals with the religious non-profits themselves. Seven of them are claiming that the very act of signing such a waiver puts an undue burden on their free exercise of religion. What they want is the wholesale exemption from the mandate – i.e. no free contraceptive coverage for their employees – that is provided to houses of worship and other organizations whose sole purpose is religious.

Zubik consolidates cases brought on behalf of the anti-abortion group Priests for Life and an array of religiously affiliated schools and colleges, but most public attention has focused on the Little Sisters of the Poor, an order of nuns that runs more than two dozen nursing homes in the United States. The nuns are represented by the Becket Fund for Religious Liberty, a conservative non-profit law firm specializing in free exercise cases.

Becket also represents two small Baptist universities in Texas that are challenging the mandate, but it gives pride of place on its website to the Little Sisters, and it’s pretty clear why. Sweet elderly nuns fighting for their rights provide better optics for religious liberty than institutions of higher education looking to deny contraceptives to sex-crazed college students.

Coveage of the Court’s decision to take the new case by major news organizations was generally balanced. Adam Liptak of the New York Times gave equal weight to arguments from each side and maintaining neutrality in his own language, as did the Wall Street Journal’s Brent Kendall and Louise Radnofsky. The two papers outlined the challenge’s movement through the lower courts and highlight the main controversies present in the debate.

The Times and the Journal both quoted Gretchen Borchelt of the National Women’s Law Center, an advocate on behalf of the government in favor of women’s health rights. They quoted lawyers representing one or more of the non-profits in the case – Mark Rienzi of Becket in the Times, and Greg Baylor of the Alliance Defending Freedom in the Journal.  The quotes juxtaposed the arguments on either side evenhandedly.

However, in an otherwise balanced report, USA Today’s Richard Wolf let his bias show. The Supreme Court, he declared in his lede, “is about to climb back into Americans’ bedrooms.”  The statement gives the impression that Wolf is opposed to government involvement in private affairs, such as those that take place in the bedroom. It also certainly leaves readers with vivid imagery of what this decision could mean for Americans.

Opinion about this issue has been sharply divided ever since Little Sisters and the other religious non-profits began challenging the ACA mandate back at the end of 2013. At first, there was no accommodation of any kind – the accommodation for religious non-profits was part of final additions to the Affordable Care Act, made in the summer of 2013.

Soon after, Little Sisters filed for an emergency stay from the Supreme Court to exempt them from the accommodation. Appeals courts repeatedly denied the request, but Justice Sonia Sotomayor said yes on New Years Eve, the night before the accommodation rules would go into effect on January 1, 2014.  In the days that followed, journalists on each side of the debate hit the ground running with their coverage of the Little Sisters’ claim.

On the left, writers have been largely content to cite the overwhelming success in appeals courts in their analysis of the claim, as well as the stern opposition of the federal government. Sarah Posner of Religion Dispatches quoted the government’s declaration that “the Little Sisters have no case”, and that interpreting RFRA to legitimize their claim would be “extraordinary.”

The New Yorker’s Amy Davidson likened trying to understand the claim to being “closed into a small room with reflecting walls,” since the Little Sisters have asked for an accommodation to an accommodation. She said, “the suit embodies the irrationally passionate objections to not only Obamacare but also women’s access to contraceptives and, more broadly, reproductive rights.”

On the right, where judicial backing has largely been absent, opinion writers have relied on advocates or their own rhetoric. Ingrid Jacques of the Detroit News announced that the “federal government should leave nuns alone”, shaming the “federal government’s mission to force nuns to violate their faith.”

The National Catholic Register ran an article in September of 2014 whose headline read, “Obama Administration Continues to Target Little Sisters of the Poor.” The article’s author, Adelaide Mena, quoted a variety of Little Sisters supporters, including Adele Keim of Becket. Mena also placed the word “accommodation” in quotations, indicating her distain for the government’s rule.

Since the Court agreed to hear the case, nothing much has changed in journalistic rhetoric.

Opinion writers on the left had nothing good to say. “It doesn’t violate your religious beliefs when the government asks you to declare your religious beliefs so that it can accommodate your religious beliefs,” Jon Green wrote on America Blog. His article features an image of a cross and the iconic Papal headdress superimposed over a picture of a Hobby Lobby store.

In perhaps more sophisticated opposition, Advocate’s Rea Carey makes an argument that echoes the sentiments of those who want to protect the Little Sisters from big government, declaring that “employers should not be able to impose their religious beliefs on their employees.” She goes on to connect the contraception exemption controversy to other civil liberties debates, explaining that allowing religious employers to claim complete exemption to contraception could also lead to similar objections, for example, about PrEP, an anti-HIV drug.

On the other hand, supporters of the challenge frame the issue as a question of “whether the Obama Administration can force employers to violate their religious beliefs.” No satire is present in the supporting coverage – in fact, the language used is often very grave. Ben Johnson of Life Site News explained that the challenge was brought because the accommodation still requires the plaintiffs to violate their conscience and “participate in a process that will give their employees drugs that could take an unborn human being’s life.”

Jonah Hicap of Christianity Today employed more neutral language, but the only quotes he included either favor the Little Sisters or are statements made by the Little Sisters themselves.

At the heart of the case is the federal Religious Freedom Restoration Act (RFRA), which was passed in 1993 to overturn Unemployment Division v. Smith, a Supreme Court decision that said that neutral laws which apply to everyone cannot be challenged as violating anyone’s religious free exercise. Under RFRA, the federal government must establish that the law in question advances a compelling state interest, and that it achieves that interest by the least restrictive means possible. If it fails to do so, the religious non-profits will win the case.

After a series of seven rulings from federal appeals courts that upheld the validity of the accommodation, opponents won a decision from the Eighth Circuit Court of Appeals in September. With the appeals courts in disagreement, the Supreme Court had effectively no choice but to take the case.

Although oral argument is several weeks away, the central question to be addressed is clear enough: Does the waiver option sufficiently accommodate the free exercise rights of non-profits under RFRA? This question has been thoroughly explored by the appellate judges who have ruled on one or another of the cases.

Judge Richard Posner of the Seventh Circuit pointedly rejected the argument that the act of asking not to be required to provide contraceptive care makes an organization “complicit” in providing it. Rather, under the accommodation, “new contracts are created, to which the [religious non-profit] is not a party, between the government and the insurers.” Therefore, in Posner’s view, the accommodation meets the least restrictive means requirement.

By contrast, Judge Roger L. Wollman of the Eighth Circuit found that while the government does have a compelling interest in providing women with free contraceptives, the accommodation does not sufficiently alleviate the burden on religious exercise caused by the contraceptive mandate. Wollman wrote that the government “could provide subsidies, reimbursements, tax credits, or tax deductions to employees, or…the government could pay for the distribution of contraceptives at community health centers, public clinics, and hospitals with income-based support.” There is no evidence to suggest that these alternate options are unattainable, Wollman said, and thus the government has not met the least restrictive means requirement.

At this point, it looks as though the Court will accept the position that, as Wollman conceded, the government has a compelling interest in providing women with free contraceptive coverage. Its decision is thus likely to turn on the question of “least restrictive means,” and how it interprets the claims within the framework of the RFRA conditions.

Prior to the sudden death of Justice Antonin Scalia February 13, neither side appeared over-confident of the result. Proponents and opponents alike focused their attention on Justice Anthony Kennedy, who has provided the swing vote in many recent cases involving the tension between secular rights and religious liberty.

In Hobby Lobby, Kennedy’s concurrence commended the waiver accommodation as a reasonable compromise.  “There are many medical conditions for which pregnancy is contraindicated”, he wrote, explaining that the Court recognizes that “the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”

He also declared that the arrangement for religious non-profits was indeed a valid means of assuring both religious liberty and women’s access to free contraception: “In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”

In other words, Kennedy already appears to have signaled that he sees the accommodation as fulfilling the “least restrictive means” test in reconciling the interest of the government with that of the religious groups. If so, it would mean that, even if Scalia were still on the court, the non-profits would lose their case. If not, the court would almost certainly split 4-4, leaving the various appellate decisions to stand in their respective jurisdictions until justices can take it up again.

Full coverage of important dates, amicus briefs, and the petitions involved can be found at
Oral argument is scheduled for March 23 with a decision expected in June.


One thought on “Obamacare’s Contraception Mandate, Post-Scalia

  • March 1, 2016 at 3:05 pm

    Thanks for keeping RITN going in this format.
    While some of your articles do not interest me particularly, others do.

    Having this choice in this format, by digital dissemination,is a whole lot better than having no choice at all. I suspect that there are many of your readers who have the same point of view, who may not write to express it.

    I hope you will keep up the good work !


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