Barrier Method?

U.S. Supreme Court To Hear New Group Of Cases That Could Further Limit Americans' Access To Reproductive Health Care

Political allies of the Religious Right, like U.S. Sen. Ted Cruz (R-Texas), are trying to convince the American public that the federal government wants to force nuns to buy birth control.

“You know, every American should know about the Little Sisters of the Poor,” Cruz said during an address at the Family Research Council’s Values Voter Summit in Washington, D.C., in 2014. “You want to talk about values? Right now the federal government is suing the Little Sisters of the Poor to try to force Catholic nuns to pay for abortion-inducing drugs.”

Cruz’s comments came in reference to legal challenges filed by dozens of religiously affiliated non-profit organizations, including the Little Sisters of the Poor, that don’t want their employees to get access to birth control.

The groups are dissatisfied with an accommodation that already exempts them from an Affordable Care Act (ACA) requirement that most employers must provide their employees with insurance plans that cover contraceptives. Despite that exemption, the nuns, who run a chain of homes for the elderly, sued the federal government – not the other way around – because they believe their “religious freedom” is at risk when their employees, many of whom likely don’t share the nuns’ views on birth control, have access to certain forms of medical care.

To Cruz, a Tea Party hero and GOP presidential hopeful, these nuns are emblematic of the Obama administration’s supposed war against religion.

The reality, however, is very different. Both for-profit corporations and religiously affiliated non-profits that object to offering employee health-care plans that include birth control must simply sign a two-page form stating their objection to the ACA’s so-called contraceptive mandate. They also have the option of sending the government a letter stating their objection and providing some basic information.

Once the form or letter is submitted, the government takes care of the rest to make contraceptives available to employees who want them. The employer is in no way obligated to endorse birth control, let alone pay for it. But even that basic form or letter is too much for some organizations, which claim that their “religious freedom” is somehow burdened if their employees use birth control – regardless of who pays for it.

If this complaint by a group of Catholic nuns sounds extreme to you, then you are of the same mind as most federal courts. Seven out of eight U.S. appellate courts to have considered this matter have rejected the argument that the act of opting out of the ACA is a burden to religious belief. But when a panel of the 8th U.S. Circuit Court of Appeals sided with a few of these non-profits in September, it virtually assured that the U.S. Supreme Court would take up the issue.

Indeed, on Nov. 6 the high court announced it will hear seven consolidated cases in yet another challenge to a provision of the ACA. Although the cases before the high court this time involve non-profit organizations, the challenged accommodation was also made available to for-profit corporations following the 2014 decision in Burwell v. Hobby Lobby Stores. So if the non-profit employers in these cases win, observers expect for-profit corporations such as Hobby Lobby to challenge the accommodation too, once again putting the health-care needs of tens of thousands of employees at risk.

Of the seven consolidated cases, the best known is Little Sisters of the Poor Home for the Aged v. Burwell. The Colorado-based Little Sisters have waged an effective public-relations war throughout their legal challenge to the ACA, making sure to put a group of nuns front and center whenever they address the media about their case.

This is deliberate. It leads casual observers to wonder why the Obama administration would expect a bunch of devout Catholics to buy birth control.

The people you don’t see at press conferences are the men and women who are employed by the plaintiffs in these cases – many of whom likely rely on safe and effective birth control.

The nuns claim that signing a form or writing a short letter to protect these employees “would make them morally complicit in grave sin” because it somehow “triggers” the use of abortion-inducing drugs. (The contraceptives in question, medical experts agree, don’t cause abortions.)

The abortion issue is a smokescreen. The nuns seek to block their employees from using any form of birth control – even the ubiquitous birth control pill, which the vast majority of American women use at some point in their lives.

“On the… mandate issue, the government basically forced us into a corner,” Sister Constance Carolyn of the Little Sisters wrote in an email last March to the Atlantic. “We have no desire to litigate against our government, but we had no choice because we cannot participate in the moral evil of providing or facilitating the provision of abortion and contraception. So the government has put us in a very real bind.”

This public-relations campaign has earned the Little Sisters some powerful friends. Besides Cruz, former Arkansas Gov. Mike Huckabee, another GOP presidential hopeful, defended the nuns in September – while also attacking President Barack Obama.

“Here’s a person who says he’s a Christian, all right let’s take it at face value, let’s just say that’s correct,” Huckabee said of Obama during an interview with Fox News’ Sean Hannity. “But what kind of Christian? What kind of Christian goes after the Little Sisters of the Poor?”

Huckabee and other right-wingers who have commented on the case consistently fail to mention the numerous people in the employ of the Little Sisters who not only aren’t nuns but who may not even agree with Catholic doctrine on the use of birth control. (The nuns’ view is so strict most U.S. Catholics reject it.)

For example, the Little Sisters website notes that its Denver facility has “a staff of professional men and women and over 60 volunteers.” 

The Little Sisters run homes for the aged all over the country, and they employ many people as care-takers, food-service workers and maintenance staff. These modest-wage jobs are often filled by women – and many of them want and expect access to birth control in their health-care plan.

While they’ve been successful in manipulating public opinion, the nuns have fared less well in court. In July, the U.S. 10th Circuit Court of Appeals was not sympathetic to the nuns’ argument, ruling that the act of opting out of the ACA contraceptive coverage regulations does not infringe on the religious-liberty rights of the Little Sisters under the Religious Freedom Restoration Act (RFRA), a 1993 federal law designed to protect religious liberty.

“[T]he accommodation relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise,” the decision read.

The Becket Fund for Religious Liberty, a Washington, D.C.-based conservative legal group that represents the Little Sisters, did not see it that way; the group began hyperbolically asserting that the federal government wants to turn Catholic organizations into birth control dispensaries.

“The government keeps digging the hole deeper,” said Adèle Auxier Keim, Becket Fund legal counsel, in a July 10 statement. “[T]he government still won’t give up on its quest to force nuns and other religious employers to distribute contraceptives.”

But not even the 5th U.S. Circuit Court of Appeals, which is presided over by some of the most conservative judges in the nation, bought into the idea that filling out a form is a religious burden. In another non-profit case, East Texas Baptist University v. Burwell, Judge Jerry E. Smith – an appointee of President Ronald W. Reagan – wrote that the school is not required to provide contraceptives or do anything else that would violate its religious beliefs.

“The payments for contraceptives are completely independent of the plans…,” Smith wrote. “The acts that violate their faith are the acts of the government, insurers, and third-party administrators, but R.F.R.A. does not entitle them to block third parties from engaging in conduct with which they disagree.”

As in Hobby Lobby, these cases turn on the interpretation of RFRA. But there are important differences. In Hobby Lobby, the Supreme Court had to consider whether requiring a for-profit corporation whose owners had a religious objection to paying directly for birth control coverage violates RFRA. This time, the high court must decide whether the mere act of filling out a form or writing a letter to opt out of certain health-care coverage places a substantial burden on the beliefs of religiously affiliated non-profits.

Observers have already begun to speculate how the Supreme Court will decide in this matter, using Hobby Lobby as a guide. In that 2014 decision, Justice Samuel A. Alito wrote that the Obama administration’s accommodation for religious groups like the Little Sisters “does not impinge on the plaintiffs’ religious beliefs.” He also suggested that the government could extend this accommodation to for-profit groups like Hobby Lobby, which is exactly what happened in July of last year.

Justice Anthony M. Kennedy, who is generally viewed as the swing vote in contentious cases like Hobby Lobby and will perhaps be the tie breaker in the non-profit contraception decision, hinted in his concurring Hobby Lobby opinion that he would not strike down the Obama administration’s accommodation for non-profits.

“The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it,” Kennedy wrote. “That accommodation equally furthers the Government’s interest but does not impinge on the plaintiff’s religious beliefs.”

Kevin Martin, a former law clerk for Justice Antonin Scalia, told The Huffington Post that Kennedy’s words in particular should trouble the Little Sisters and their allies. Kennedy “goes out of his way in the other direction to say the accommodation does not burden religious exercise rights,” Martin said. “It may be that because he didn’t have the Little Sisters case before him, you can’t read too much into it, but it should give the plaintiffs cause for concern.”

Americans United will weigh in on this issue with an amicus brief in the coming months. AU previously filed a brief in the Little Sisters case in which it argued that absolutely no harm is being done to non-profits that are required to do nothing beyond state their objection to contraceptives.

“A burden is not substantial under RFRA simply because a litigant says so…,” the brief asserted.

Americans United Senior Litigation Counsel Gregory M. Lipper, who will work on AU’s upcoming brief, said previously that no further accommodation is needed to protect the rights of religiously affiliated non-profits.

“These cases are not about whether employers have to provide coverage for birth control: The government has already exempted them from doing so,” said Lipper in a November statement. “But the plaintiffs refuse to take yes for answer. Instead, they claim the right to prevent their employees from getting contraceptive coverage from third parties, who will be providing the coverage and no cost to – and with no involvement from – the plaintiffs.”

Of course, the high court could set all of those previous considerations aside and adopt the view of the only federal appeals court that sided with a religious non-profit challenging the ACA accommodation. In its decisions in Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services and Dordt College v. Burwell, which were issued in September, a panel of the 8th U.S. Circuit Court of Appeals said an organization’s belief that opting out of the ACA mandate “triggers” abortions is sufficient.

“[W]e conclude that by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion” and “that, even assuming that the government’s interests in safeguarding public health and ensuring equal access to health care for women are compelling, the contraceptive mandate and accommodation process likely are not the least restrictive means of furthering those interests,” wrote Judge Roger Wollman.

Americans United, which filed an amicus brief in these cases along with its allies, strongly disagreed with the 8th Circuit’s position.

 “The employers in these cases are giving the noble concept of religious freedom a bad name,” said Barry W. Lynn, executive director of Americans United, in a press statement. “They want to use the Religious Freedom Restoration Act to gain tremendous power for themselves at the expense of untold numbers of women. That is not how it should work in this country, and I sincerely hope the Supreme Court agrees.”

If the high court does not agree, however, the consequences could be dire.

“While the plaintiffs in these cases are all non-profit organizations, if they succeed then employees of for-profit corporations – including multibillion dollar chains like Hobby Lobby – will also be left in the lurch,” Lipper said. “In fact, in ruling for Hobby Lobby last year, the Supreme Court told the government to extend this accommodation to for-profit companies, so that those companies’ employees could receive contraceptive coverage from third parties. If even the accommodation is struck down, tens of thousands of employees who work for for-profit corporations will lose contraceptive coverage as well.”

It’s an alarming scenario, and by late June the nation will know whether or not it has come to pass.