Hobby Lobby, the Sequel: Coming Soon to SCOTUS

The high court agreed to hear another challenge to Obamacare’s contraception mandate.

AP Photo/Carolyn Kaster
Sam Baker
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Sam Baker
Nov. 6, 2015, 1:41 p.m.

The Su­preme Court will take an­oth­er crack at Obama­care’s con­tra­cep­tion man­date.

The court agreed Fri­day to hear an­oth­er law­suit chal­len­ging the birth-con­trol re­quire­ment, this one filed by re­li­gious non­profits. Roughly two years after the Court rolled back the con­tra­cep­tion man­date in Hobby Lobby v. Bur­well, the non­profits say the court needs to go a step fur­ther.

The con­tra­cep­tion man­date isn’t par­tic­u­larly in­ter­twined with the rest of Obama­care, so an­oth­er rul­ing against it wouldn’t threaten the law as a whole. But the pro­vi­sion has be­come a polit­ic­al light­ning rod, pit­ting wo­men’s-health ad­voc­ates against re­li­gious or­gan­iz­a­tions.

And Fri­day’s de­cision to hear the con­tra­cep­tion case might only be the be­gin­ning. The Court is widely ex­pec­ted to take up an abor­tion case later this term—set­ting the stage for high-pro­file rul­ings on both abor­tion and con­tra­cep­tion, just months be­fore the 2016 elec­tions.

The con­tra­cep­tion man­date

Obama­care re­quires most em­ploy­ers to cov­er cer­tain pre­vent­ive ser­vices in their em­ploy­ees’ health care plans, without cost-shar­ing like a co-pay or de­duct­ible. And, based on the re­com­mend­a­tion of an ex­pert sci­entif­ic pan­el, the Health and Hu­man Ser­vices De­part­ment in­cluded all Food and Drug Ad­min­is­tra­tion-ap­proved con­tra­cept­ives in the defin­i­tion of pre­vent­ive ser­vices.

Churches and houses of wor­ship are ex­empt from the man­date. Re­li­gious-af­fil­i­ated em­ploy­ers—like the non­profits in this case—have a middle ground. They don’t have to dir­ectly provide cov­er­age for con­tra­cep­tion in their health care plans. And they don’t have to pay for that cov­er­age, either.

In­stead, they’re re­quired to fill out a form re­gis­ter­ing their ob­jec­tions to birth con­trol, and the duty for provid­ing it shifts to their in­sur­ance com­pan­ies.

The Little Sis­ters’ ob­jec­tion

A group of re­li­gious non­profits, led by the Little Sis­ters of the Poor, an or­gan­iz­a­tion of nuns, says the work­around for re­li­gious-af­fil­i­ated em­ploy­ers doesn’t go far enough.

They ob­ject to filling out the form that re­gisters their re­li­gious ob­jec­tions to con­tra­cep­tion cov­er­age. Be­cause they have to fill out that form, they say, HHS is mak­ing them par­ti­cip­ate in a pro­cess that still ends with their em­ploy­ees’ health care plans in­clud­ing con­tra­cep­tion.

And they say that’s just as ob­jec­tion­able as provid­ing it dir­ectly. They want to be ex­emp­ted en­tirely from the man­date.

“It is all well and good for HHS to think it has threaded the needle and found a way for re­li­gious non­profits to com­ply with the man­date without vi­ol­at­ing their re­li­gious be­liefs, but ul­ti­mately it is for the re­li­gious ad­her­ent to de­term­ine how much fa­cil­it­a­tion or com­pli­city is too much,” the Little Sis­ters said in a brief to the high court.

How this is dif­fer­ent from Hobby Lobby

Hobby Lobby v. Bur­well, the 2014 case in which the Court weakened the con­tra­cep­tion man­date, was slightly dif­fer­ent from today’s chal­lenge. That case dealt with for-profit com­pan­ies rather than non­profits. Un­til the Court in­ter­vened, for-profit com­pan­ies had to provide con­tra­cep­tion cov­er­age them­selves; they didn’t have ac­cess to the “ac­com­mod­a­tion” that lets non­profits shift the bur­den to their in­sur­ance com­pan­ies.

The Obama ad­min­is­tra­tion ar­gues that, by cre­at­ing a dif­fer­ent pro­cess for re­li­gious non­profits, it has already tailored the con­tra­cep­tion man­date so that it will im­pose the smal­lest pos­sible bur­den on re­li­gious ex­er­cise—and that’s what the Re­li­gious Free­dom Res­tor­a­tion Act re­quires.

Not sur­pris­ingly, the Little Sis­ters dis­agree. They ar­gue that the two cases are ex­tremely sim­il­ar, and that courts are simply mis­ap­ply­ing the ob­vi­ous point of Hobby Lobby.

“In­deed, the bur­den here is not just ana­log­ous to the bur­den in Hobby Lobby; it is identic­al,” the Little Sis­ters wrote in their brief.

Or­al ar­gu­ments have not yet been sched­uled and, as al­ways, the Court did not ex­plain why it took the case.

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