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Constitution Check: Is the new Obamacare case all about the nuns?

November 10, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the desire of attorneys to have the latest Obamacare challenged named for a group of nuns.

640px-Inside_the_United_States_Supreme_CourtTHE STATEMENT AT ISSUE:

“Once again, the Supreme Court will scrutinize the Obama Administration’s controversial contraceptive mandate. The Administration can’t be happy that the Term’s most famous case will center around its attempts to strong arm nuns who have devoted their lives to caring for the homeless and the poor. As any high school student knows, the Constitution protects the religious rights of nuns, bishops, and religious schools just as much as it protects the church down the street. It’s high time the Supreme Court put a stop to the Obama Administration’s policy of subjugating religious liberty to its own agenda.”

—Public statement by Carrie Severino, chief counsel for the Judicial Crisis Network, a legal advocacy group that promotes limited government and the rule of law, on November 6, after the Supreme Court accepted review of seven cases challenging the Affordable Care Act’s mandate of free access to contraceptive services for women employees and college students.


Because high-profile legal cases also have a public relations aspect, the lawyers involved try hard to find an individual or group whose situation or personality will make the cause seem --or be -- more sympathetic. It was no surprise that Linda Brown would be the one who gave her name to the court’s 1954 decision ordering the racial desegregation of public schools.   As a grade schooler, she could not go to the public school four blocks from her house, but had to cross a railroad track and take a bus to the segregated school for black children in Topeka. (She sued through her father, because she was a minor.)

And it is no surprise that lawyers and advocacy groups pressing a new challenge to the Affordable Care Act (Obamacare) have been publicly attempting to keep the focus on just one of nearly 40 individual or group challengers involved -- an order of Roman Catholic nuns, the Little Sisters of the Poor.   The attorneys and the groups they represent would prefer that, when the Justices decide the case next year, it would come out as Little Sisters of the Poor v. Burwell, Secretary of Health and Human Services.

What better way would there be to show the supposed insensitivity of the federal government as it attempts to achieve widespread free access to birth control devices and methods for millions of women workers and college students, many of whom are employed by or enrolled in religiously affiliated institutions?

It is a fact that, among the seven cases the Justices will be hearing, the only one that raised a constitutional challenge to the birth-control mandate was that of the Little Sisters. But it is also a fact that, when the court last Friday chose the issues it would be deciding, it did not accept that specific challenge; all of the cases will be judged on whether the mandate, if it does apply to each of the challengers, violates a federal law: the Religious Freedom Restoration Act or RFRA. If the court does not accept a constitutional question, it drops out of the case and lawyers would be well advised not to try to rely on it.

If the lawyers for this order of nuns had hustled a bit more in getting the case to the court, it might have given its name to the coming decision. But that place almost certainly will go to the first case to reach the court in this controversy: Zubik v. Burwell.  That case is named for the Catholic bishop of Pittsburgh, the Most Rev. David A. Zubik.

It is a peculiarity of some of these cases that the named individual actually is not covered by the ACA mandate. Bishop Zubik is one of those, although he is the overseer of the diocese of Pittsburgh, which does have some entities that are covered.

And it is a peculiarity of the Little Sisters case that neither they nor their health plan provider seems to face a binding legal obligation to provide free contraceptive services under the ACA, although that remains a bit unclear. Rather than “strong arming” the nuns’ order to comply, the most that the government may do is to encourage the order’s insurer to do so voluntarily.

In fact, as the government has structured the mandate, not one of the organizations suing over the mandate will be required – itself – to provide the contraceptive services to their employees or their students. The government is willing to offer each one an exemption to the mandate, provided that they simply notify the government that they wish to be exempted because of religious objection to contraceptive drugs or methods.

But that is also at the center of the case. Under RFRA, if a federal government program imposes a “substantial burden” on the practice of a religion, the government can enforce that program only if its policy goal is “compelling,” and only if it uses the “least restrictive means” to achieve that goal.

There is little debate in these cases that the mandate, if enforced directly despite a religious non-profit group’s religious objections, would satisfy the burden test of RFRA. So the case will be focused tightly on whether the government, by offering exemptions to the religious entities, has adopted the “least restrictive” way to provide access to birth control drugs or measures.

If a group does claim an exemption, under the rules laid down by federal officials, the arrangement of access to contraceptives is done by the government itself, working independently with the religious institution’s health plan. But even that degree of involvement for the institution – its own health insurance plan used as the basis for the coverage – does not give them enough assurance that they will have nothing to do with the program.   Merely notifying the government that a religious institution would seek to opt out, they claim, would be to “trigger” access for their workers and students.

Thus, a major issue that the court will have to decide in these seven cases will be just how the government can, or must, go about allowing a religious institution to opt out of a program that will reach those who work for it or go to school in its classrooms. That could be the lasting legacy of Kubik v. Burwell.

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