A group of nuns have received the most attention for challenging the Obama administration’s birth control mandate, but it could be four Christian universities in Oklahoma that grab the Supreme Court’s attention this fall.
The cases are among seven near-identical challenges from religious schools, charities and clergy groups objecting to the way in which the administration allows them to be excused from an Obamacare requirement to provide employees with coverage for birth control that they morally oppose.
There is no guarantee the justices will hear any of the cases. So far, seven federal appeals courts have sided with the administration on the matter, leaving challengers without even one decision in their favor.
Yet the battle over the birth control requirement has been raging in the lower courts for years, brought by dozens of religious nonprofits from evangelical universities to Catholic dioceses that insist President Obama and his administration are trampling on their religious freedom.
Decisions are pending by two more appeals courts, the 8th and the 11th, which could create a circuit split and make it more likely for the Supreme Court to consider the matter. The Supreme Court itself has granted temporary relief from the mandate to several challengers, including Little Sisters of the Poor and Wheaton College in Illinois.
The court has shown a willingness to consider major challenges to President Obama’s healthcare law, so far deciding three cases involving parts of it: the Hobby Lobby ruling on contraception coverage, the King v. Burwell challenge over its insurance subsidies and a challenge to the entire law’s constitutionality back in 2012.
Together, those factors have lawyers involved in the challenges hopeful that the court will venture back into Obamacare territory next year.
“I don’t think it’s very likely the court is going to tell the Little Sisters or other parties we’re not even hearing your case,” said Mark Rienzi, senior counsel for the Becket Fund. “I think it would be shock.”
“There’s been literally scores of these cases involving hundreds of plaintiffs,” said Greg Baylor, senior counsel for Alliance Defending Freedom. “[The Supreme Court] already touched some of these cases … so they’re already involved in a way, so given that, I think it’s likely they’re going to take a case or some combination of cases.”
The issue revolves around a requirement in the Affordable Care Act for employers to provide workers with coverage for preventive services, which the administration has said includes all FDA-approved contraception.
Initially, only some churches were provided a religious exemption. But after an outcry, the administration said religious schools, hospitals and charities can qualify for a so-called accommodation by delegating a third party to provide the coverage.
But the groups insist the accommodation still involves them in the birth control coverage because to qualify for it, they have to sign a form. It’s a different question than the one the Supreme Court decided last summer, when it said Hobby Lobby and other closely held corporations don’t have to comply with the mandate.
Little Sisters of the Poor, a group of Denver-based Catholic nuns, has received more attention than the other challengers, as the court has twice granted it a stay from the mandate. But a case brought by Southern Nazarene University and three other Christian colleges in Oklahoma involves more types of health insurance plans, potentially giving the court a broader case on which to rule.
The Southern Nazarene case involves four types of insurance plans, including a typical insurer-run plan, a self-insured plan, a self-insured church plan and a separate student plan, whereas Little Sisters offer only a self-insured church plan.
“Amongst the four plaintiffs in that case you have basically every kind of insurance plan, and there is some belief that the answer to the legal questions should be different depending on what kind of insurance plan you have,” said Baylor, who is representing Southern Nazarene.
The earliest the Supreme Court would announce a decision would be after Sept. 28, which is the first day it is meeting to consider cases for next year. But the justices also will conference later in October, so a decision could come by the end of the year.
There is another big lawsuit related to reproductive rights that the court could choose to take up, one challenging a Texas law that abortion facilities must meet the standards of ambulatory surgical centers and doctors must have hospital admitting privileges.
Donna Barry, director of the Women’s Health and Rights Program at the Center for American Progress, thinks it’s more likely the justices will take up the Texas case than the birth control challenges, because the appeals courts so far have agreed on the latter case.
“We’ve seen such unanimity at the circuit court level that it just doesn’t make sense to me they would take it up,” Barry said, although she added that there are “a lot of people” who would disagree with her.
She points to the fact that even the U.S. Court of Appeals for the Fifth Circuit, known as one of the most conservative courts in the country, sided with the Obama administration. And in his Hobby Lobby decision, conservative Justice Samuel Alito wrote that the accommodation for nonprofits is sufficient.
“That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves [the Department of Health and Human Services’] stated interest,” Alito wrote.
This article appears in the Sept. 14 edition of the Washington Examiner magazine.
