November 10, 2015

SCOTUS Hears More Obamacare Challenges


  • The Supreme Court will decide whether Obamacare’s contraception mandate accommodation violates the Religious Freedom Restoration Act.

  • These new cases, brought by religious non-profits, are a follow-up to the successful challenge to the birth-control mandate by Hobby Lobby in 2014.

  • RFRA was popular, bipartisan legislation enacted by a Democratic House, Senate, and president. It is now under attack by the Obama administration.


Challenges to Obamacare Continue

Last Friday, the Supreme Court agreed to hear seven challenges to the Obama administration’s religious “accommodation” to the birth-control mandate imposed by the Department of Health and Human Services. The Supreme Court ruled in last year’s Hobby Lobby decision that the HHS mandate violated the Religious Freedom Restoration Act when applied to for-profit corporations owned by people with religious objections to the mandate.

At issue in the current cases is the Obama administration’s workaround for for-profit corporations like Hobby Lobby and non-profit religious institutions. Under this religious “accommodation,” organizations are still required to offer their employees health care plans providing no-cost access to contraceptives. An organization that objects to the coverage on religious grounds can notify its insurer of its objections, at which point the insurer must cover the expense of the contraceptives.

In the seven cases now before the Supreme Court, the court will decide whether this system continues to violate RFRA when applied to religious non-profit institutions. The plaintiffs argue that the accommodation still forces them to participate in a process that results in their employees receiving birth control, an act that violates their religious beliefs. For many of the objecting organizations, the concern arises specifically for four of the 20 types of birth control covered by the mandate, including the “morning after pill” and intrauterine devices.

No citizen should be forced by the federal government to comply with mandates that violate their conscience, or pay fines just for living in accordance with their beliefs.” – Texas Attorney General Ken Paxton, 11/6/15

The plaintiffs include the Little Sisters of the Poor – an order of Roman Catholic nuns that runs nursing homes – Christian universities, and Catholic dioceses, schools, and charities. Texas, Alabama, Arizona, Florida, Georgia, Kansas, Louisiana, Michigan, Montana, Nevada, and Ohio have submitted amicus briefs in favor of the plaintiffs. The cases will be consolidated into one, with arguments scheduled for some time in late March and a decision possible by the end of June.

A Bipartisan Religious Law under Attack

When RFRA was enacted in 1993, it passed the Democrat-controlled Senate 97-3 and the Democrat-controlled House by voice vote. It was sponsored by Chuck Schumer in the House and by Ted Kennedy in the Senate, and President Bill Clinton signed it into law.

RFRA was enacted following a controversial Supreme Court decision, Employment Division v. Smith, in which the court held that the Constitution does not protect religious exercise from infringement by laws that are general and neutral. The case dealt with the use of peyote in the religious ceremonies of the Native American Church. Congress emphatically rejected the court’s decision when it passed RFRA.

The law prohibits the government from placing a substantial burden on the free exercise of religion. The government may violate this prohibition if the burden serves a compelling government interest and it “is the least restrictive means” of furthering that interest. While a seemingly simple test, circuit courts have varied in how they’ve applied it. So the Supreme Court will be deciding the correct test under RFRA, in addition to its specific application to the birth-control mandate.

The Hobby Lobby case dealt with similar questions, but with two differences from the issue before the court now.

  • First, the key issue in the Hobby Lobby case was whether a closely held corporation is a “person” capable of having religious beliefs protected under RFRA. The Supreme Court found that it is.
  • Second, the Hobby Lobby case did not consider the current accommodation, as for-profit entities were required to pay directly for the contraceptive coverage with no workaround.

This is the fourth time the Supreme Court will consider a challenge to the Affordable Care Act. In addition, the court is currently considering whether it will hear another case – Sissel v. HHS – dealing with the constitutionality of the ACA individual mandate tax having originated in the Senate rather than the House.

The seven newly granted cases are critical to the future of religious liberty in the face of growing government involvement in every aspect of life. In recent years, there has been a growing call from the left to repeal or amend RFRA. The Obama administration has taken the side of far-left activists who have little regard for religious liberty when it conflicts with their political agenda.

Issue Tags: Judiciary, Health Care