Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, examines the core question that now surrounds the Affordable Care Act’s mandate for employers to provide birth-control services to their employees or, for colleges, to their students.
THE STATEMENTS AT ISSUE:
“The accommodation [already provided to religious employers who object to providing birth control services under the Affordable Care Act] is the least restrictive means of furthering compelling government interests, including the government’s interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.”
– Excerpt from a Justice Department filing in the Supreme Court, urging the Justices to step in now to resolve conflicting rulings by federal appeals courts on the legality of the birth-control mandate under the new federal health care law, as it applies to non-profit institutions. The Justices are scheduled to take their first look at seven different appeals on that issue, at their private conference in Washington on October 30.
“If there are other reasonable ways to achieve the government’s interests with a lesser burden on protected activity, the government may not choose the way of greater interference. … The current accommodation process is not the least restrictive means of furthering the government’s interest. … The Supreme Court has approved a method [of accommodation] that is arguably less onerous than either form of accommodation [so far provided by the government].”
– Excerpt from a ruling on September 17 by the U.S. Court of Appeals for the Eighth Circuit, making it the first appeals court to block the government at least temporarily from enforcing the ACA birth-control mandate for a non-profit employer who objects on the basis of religious faith. Because that decision created a conflict with other appeals courts’ decisions, the Supreme Court is now more likely to step in to clear up the issue.
WE CHECKED THE CONSTITUTION, AND…
Religious freedom, including the right to be free from government interference with faith practices, has been firmly established since the First Amendment was ratified in 1791, and by common practice even before then. In modern times, the federal law that goes the furthest to enforce that guarantee against actions of the federal government is the Religious Freedom Restoration Act, passed unanimously in the House and nearly unanimously by the Senate in 1993.
The Act is getting a new and thorough reexamination in the courts as part of the ongoing challenges to the Affordable Care Act (popularly known as “Obamacare”). In reading court opinions, it is sometimes a little difficult to make out whether the judges have relied on the Constitution or only on the Act’s terms; the constitutional goals and the goals of the Act are, indeed, reinforcing each other.
The next test of this controversy is developing, focusing on the ACA mandate for birth-control services to employees or students at non-profit religious institutions that have objections, based on faith, to some or all forms of contraceptives. This test was the predictable sequel to the Supreme Court’s ruling last year in the Burwell v. Hobby Lobby case, which spared the owners of profit-making businesses a legal duty to obey the mandate, if the firm is owned by only a few individuals and they have faith objections to birth controls.
When the federal government first wrote rules to enforce the mandate, it required non-profit charities, hospitals and colleges to file a specific government form, in order to claim an exemption. The government would then use that form to arrange, on its own, for that institution’s health insurer to provide contraceptive coverage for employees and students.
In the Hobby Lobby decision on profit-making companies, the Supreme Court spoke favorably of such an accommodation of faith, but did not explicitly give its approval to the specific form the government up to then had prescribed. As non-profits pursued their own lawsuits against the mandate, they complained that the filing of that official form served merely as a “trigger” to get contraceptives to their employees or students. That, they argued, made them partners in delivering birth control, violating their faith.
The Supreme Court, in a few temporary orders following the Hobby Lobby ruling, said the government had to take steps to accommodate the non-profits, too, and advised that the challengers could gain an exemption by writing a simple letter to the government, saying that they qualified for accommodation. In response to that, the government decided that the non-profits could seek an exemption with a simple letter, but it also specified that, in doing so, the letter had to notify the government of who their insurer was, and how to get in touch.
Again, the non-profits told the courts that this alternative form of accommodation did not meet their religious objections. Passing on information to facilitate government contact with their insurers, they argued, still enlisted them in making the contraceptives available.
However, in the first wave of rulings on the non-profits’ challenges, six federal appeals courts uniformly declared that the new form of accommodation did not make the non-profits the facilitators of enforcement of the ACA mandate. Once they filed the information, the process of providing the contraceptives shifted to the insurer, working with the government, leaving the non-profits uninvolved, those courts concluded.
That string of decisions, however, was broken in September, when the latest federal appeals court to rule on the issue—the court based in St. Louis—ruled that the government could go even further with accommodation, and had to do so in order to protect the religious beliefs of the non-profit institutions’ operators.
Finding legally inadequate any form of opt-out that the government had arranged so far for non-profits, that appeals court interpreted the temporary orders that the Supreme Court had issued for non-profits as endorsing an even simpler form of notice to the government. This would be a simple letter claiming the exemption—but nothing more.
It would be up to the government, using its own resources, to locate the insurer for that institution and then, on its own, make the arrangements for coverage, the appeals court said. It stressed that, under the RFRA law, the government must make a strong case that, in trying a method to accommodate faith practices, it had, in fact, done all that it could, within reason.
It is unclear whether that less-demanding alternative would be enough to meet the objections of the non-profits. But it appears they will have a chance to make their full argument against the ACA mandate, in whatever form they choose, since Supreme Court review of the issue now seems virtually predictable.
