Constitution Check: Which birth control case will the Supreme Court choose?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the seven cases the Supreme Court is evaluating as the next test cases presented about the Affordable care Act, or Obamacare.

THE STATEMENT AT ISSUE:

“After impermissibly trying to pick and choose which religious groups to exempt from the [Obamacare] contraceptive mandate, [the government] should not now be allowed to pick and choose its opponent or which questions it must confront in defending its actions….This case alone presents the question of whether the discrimination among religious employers…can be reconciled with the Constitution.

– Excerpt from a legal brief filed in the Supreme Court by lawyers for the Little Sisters of the Poor, an order of Roman Catholic nuns seeking to persuade the Justices to accept their appeal for review of the birth control mandate in the federal Affordable Care Act.   The court has seven cases competing for the Justices’ attention.  It is expected to make up its mind this week or next.

WE CHECKED THE CONSTITUTION, AND…

The Constitution has very little to say about the cases that deserve to be decided by the Supreme Court, so the Justices have very wide discretion about which 75 or 80 cases they choose to review each year out of several thousand filed with them annually   And Congress, which has some authority to shape the court’s workload, has made that discretion even wider in modern times.

When a major legal or constitutional question rises up through the lower courts, more than one appeal on that issue can reach the court.  In that situation, it is rather like observing a lottery to watch the court sort through the pile of legal filings to find the lucky one (or ones) that make it onto the docket for decision.   The Justices did that last term, when they carefully selected four cases on the historic issue of same-sex marriage, and combined them for review.

The Justices could have known that they were going to get a flood of new cases dealing with the Affordable Care Act’s mandate that requires employers to provide – at no cost to their women workers – a variety of birth-control methods and techniques.  That mandate had been challenged in scores of lawsuits in lower courts across the country, both by profit-making businesses whose owners’ held religious views opposed to one or more form of contraceptive, and by non-profit religious institutions like charities, hospitals, colleges and schools.

Last year, the court took on the challenge by profit-making businesses, and ruled that they could not be forced to obey the mandate against their owners’ religious preferences, at least when the company was not publicly owned by many investors.  That was the decision in the case of Burwell v. Hobby Lobby Stores.  It now has become the turn of the non-profit institutions to have their challenges before the court – if, as everyone seems to expect, the court does agree to hear their claims.

There are now seven cases vying for the court’s attention from religious non-profit institutions, many of them Roman Catholic but others involving other religious denominations.  The Justices are scheduled to start sorting through those this week, and as they do so, they will find that every one of the petitions tries to make a case that it would be the ideal one to set up the issue.

Court observers have noted that the non-profits would very much like to have the court accept a petition filed by an order of Catholic nuns, the Little Sisters of the Poor, because that organization is likely to be a very sympathetic challenger and that perception might improve the chances for overturning the mandate for religious non-profits in general.

But the Justice Department – whose advice on the matter of selection of cases the court more or less accepts – has argued that there are procedural flaws in the Little Sisters case, contending that it is not an ideal one.  The Little Sisters’ lawyers have now fought back quite aggressively, noting that theirs is the only case that would test the ACA birth-control mandate under the Constitution.  (They also argued, as the quotation above shows, that the government made up its own mind which religious groups to exempt and which to make obey the mandate, so it should not be able to do the same among the pending cases.)

The usual challenge has been under the Religious Freedom Restoration Act – the law that worked in favor of Hobby Lobby Stores last year.   And, it is a common practice for the court to decide cases on the basis of laws, rather than on the Constitution, taking on constitutional questions only when absolutely necessary.

The Justice Department would prefer that the court grant review of a case filed by Roman Catholic prelates and institutions in Washington, D.C.   The department views that case as presenting the controversy in a variety of factual contexts that would give the court a broader look, but only under the Religious Freedom Restoration Act.

There is a split among federal appeals courts on the challenges brought under the Act, the department has noted, and there is not a similar conflict over constitutional questions.

The central issue the court would face, under that Act, is whether the federal Department of Health and Human Services has gone far enough in trying to accommodate the religious views of employers who oppose contraceptives.

In fact, federal officials have made three separate attempts to write rules that would assure the religious non-profits that they would be sufficiently removed from the process of providing contraceptive services so that they would not be directly responsible for doing so.  None of those have satisfied the protesting non-profits, however, and they thus are asking the Justices to give them a complete exemption from the mandate – as church, synagogue and other worship-based employers have had from the beginning.

The court has the option of taking some, all or none of the cases.  If they do decide to resolve the controversy, they may craft for themselves the specific questions they are going to seek to answer, because the various petitions do so differently.

If the dispute is accepted by the Justices, it appears that that would happen in time for the question to be answered in this term of the court, with a final decision by next June.