Contraceptive Mandate Likely Headed To Supreme Court

A split among appeals courts raises the likelihood that the U.S. Supreme Court will take up the issue of the legality of the Affordable Care Act’s contraceptive mandate, according to a noted Supreme Court expert.

The Supreme Court begins its new term Oct. 5.

The 6-1 divide among the federal appeals court matters because the Obama administration had previously relied upon unanimous appeals court decisions in upholding the administration’s accommodation for plaintiffs and institutions in search of relief from the ACA’s contraceptive mandate.

“When the Obama administration filed its first response in the Supreme Court to the new group of nonprofit cases, in mid-August, it relied upon the unanimous views of appeals courts up to then as an argument against Supreme Court review,” writes Supreme Court expert Lyle Denniston in a Sept. 17 post on SCOTUSblog. “That situation has now changed.”

Fissures among appeals courts typically provide the grounds for the Supreme Court to step in and resolve differences among the lower courts.

At issue is whether nonprofit organizations operating businesses, colleges, schools and charities violate their own religious beliefs if they make contraceptives available to employees or their students.

Last week, the 8th U.S. Circuit Court of Appeals based in St. Louis ruled that they do, and temporarily barred the government from enforcing the contraceptive mandate. ACA requires employers to provide contraceptive care as part of health insurance coverage, or risk being fined.

The Sept. 17 ruling by U.S. Circuit Judge Roger L. Wollman affirmed an injunction issued by the District Court in Sharpe Holdings versus the U.S. Department of Health and Human Services, the U.S. Department of the Treasury and the U.S. Department of Labor, and their top administrators.

Additional plaintiffs included CNS Corp., Ozark National Life Insurance, N.I.S. Financial Services, CNS International, Heartland Christian College and three named individuals.

The plaintiffs argued that the ACA’s contraceptive mandate and the government’s “accommodation process,” imposed a “substantial burden on their exercise of religion” in violation of the Religious Freedom Restoration Act of 1993.

It is the first time that a federal appeals court has ruled against the U.S. government and the ACA’s contraceptive mandate.

“Merely notifying the government of their objection through a government document or a formal letter to the government, they contended and the Eighth Circuit agreed, would trigger the coverage in their health insurance plans,” under the ACA, Denniston wrote.

“They oppose abortion, and consider some of the mandated coverage to be the same as ‘abortion on demand,’ they believe it would violate their faith to trigger the coverage.”

The 8th Circuit’s decision came just days after the 7th U.S. Circuit Court of Appeals based in Chicago ruled in favor of the U.S. government. In doing so, the 7th Circuit joined five other federal appeals courts that had previously ruled in favor of the government.

But last week’s ruling by the U.S. Court of Appeals in St. Louis “drastically increases the likelihood of a Supreme court review of the mandate,” according to a news release issued by The Becket Fund for Religious Liberty, a nonprofit, public-interest law firm in Washington.

“The government keeps telling the Supreme Court, ‘Move along, nothing important here,’ in hopes that the court will ignore this crucial issue,” Lori Windham, senior counsel of The Becket Fund, said in a statement.

Denniston writes that the seven federal appeals cases, six in favor of the ACA’s mandate and one against, along with seven other cases already pending before the Supreme Court, amount to “sequels” to last year’s Hobby Lobby decision.

In the Hobby Lobby case, the Supreme Court ruled 5-4 that some private employers do not have to comply with the contraceptive mandate if doing so would violate the business owner’s religious beliefs.

Last week’s 8th Circuit decision involved a multiplicity of plaintiffs in two separate cases.

In addition to the plaintiffs listed in the Sharpe Holdings case, Dordt College, a Christian liberal arts college in Sioux Center, Iowa, and Cornerstone University, a nondenominational Christian university in Grand Rapids, Mich., also sued the federal agencies.

They also argued that the contraceptive mandate is a violation of the Religious Freedom Restoration Act.

InsuranceNewsNet Senior Writer Cyril Tuohy has covered the financial services industry for more than 15 years. Cyril may be reached at [email protected].

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Cyril Tuohy is a writer based in Pennsylvania. He has covered the financial services industry for more than 15 years. He can be reached at [email protected].