The battle over Obamacare’s birth control mandate is gearing up for its second round.
Nearly 50 lawsuits from nonprofits are winding their way through federal courts, challenging whether Obamacare’s religious accommodation to the birth control mandate is adequate. Legal experts believe the question is likely to wind up in front of the Supreme Court.
The lawsuits sprang up after the court ruled last year that for-profit employers could be excused from providing birth control coverage through a religious freedom law. The case, Burwell vs. Hobby Lobby Stores, took aim at Obamacare’s requirement that larger companies pay for several preventive care measures such as birth control.
The ruling in that case settled only some of the legal questions raised by the mandate, experts say.
Religious nonprofits are eligible to get an accommodation from the government, which entitles their workers to full contraceptive coverage but releases the employer from paying for it, according to a brief from Kaiser Family Foundation.
But the nonprofits want an exemption, which means workers would not receive coverage for some or all contraceptives, Kaiser said.
The 46 lawsuits argue that when the “insurer separately contracts with an employer’s workers to cover contraception at no cost, it remains part of the employer’s plan and is financed by the employer,” Kaiser said.
The nonprofits also say if they notify the Obama administration, then they are triggering the provision of birth control insurance coverage. The government has responded that federal law requires the insurer or third-party administrator to provide the coverage, Kaiser said.
The lawsuits haven’t had a successful track record. So far the appellate courts have uniformly upheld the Obama administration, said Timothy Jost, a legal professor with Washington & Lee University.
Normally the Supreme Court gets involved if there is a split among federal appellate courts.
If all of the appellate courts rule in favor of the government, the chances of the Supreme Court hearing the case decrease, Jost told the Washington Examiner.
However, at least one district court found the accommodation doesn’t go far enough, he said.
Since there are so many cases and it is an important issue, it is likely the Supreme Court will hear the issue, Jost said.
Several justices have offered a few hints on whether they will take up the case.
For instance, a lower appellate court struck down a lawsuit brought by Geneva College, a Christian college in Pennsylvania, and the bishops of Pittsburgh. However, last month Justice Samuel Alito granted the two plaintiffs’ request for a temporary stay to not comply with the accommodation.
Last year the court granted an emergency stay for Wheaton College, a Christian college in Illinois whose case was struck down. The college’s appeal will be heard before the 7th circuit.
The court will let the lower court’s decision stand or take up the case, Kaiser said.
Last month, the justices tossed back to the lower courts a lawsuit brought by the Michigan Catholic Conference and the Catholic Diocese of Nashville. The case was decided for the government before the Supreme Court ruled on the Hobby Lobby case, but now it will be heard again due to the Hobby Lobby decision.
