U.S. Supreme Court dives back into the fight over contraceptives and Obamacare

The U.S. Supreme Court building is shown. Justices said they will rule on whether religious schools, colleges and charities may refuse to cooperate in any way with the Obama administration's plan of offering free birth control to female employees.

The U.S. Supreme Court building is shown. Justices said they will rule on whether religious schools, colleges and charities may refuse to cooperate in any way with the Obama administration’s plan of offering free birth control to female employees.

(Pablo Martinez Monsivais / Associated Press)
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The U.S. Supreme Court has agreed to decide another religious-liberty clash over contraceptives that insurers are required to pay for under President Obama’s healthcare law.

The justices said they will rule on whether religious schools, colleges and charities may refuse to cooperate in any way with the administration’s plan of offering free birth control to female employees, including by signing a notice citing their religious objection.

Obama’s lawyers have stressed that none of the Catholic or evangelical Christian institutions are being asked to pay for contraceptives if they cite a sincere religious objection to doing so.


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But that concession has not mollified Catholic bishops or the leaders of hundreds of Christian schools and colleges, including Notre Dame University and nonprofit charities such as the Little Sisters of the Poor.

Joined together in dozens of lawsuits, the religious institutions argued they would be “morally complicit in grave sin” if they were required even to notify the government of their refusal to comply. That notice would shift the burden of paying for birth control to their insurers, they noted.

Under federal regulations, the notice “triggers” the duty of the church’s private insurers and therefore, makes the church leaders “complicit in the delivery” of the disputed contraceptives, lawyers for the Catholic archbishop of Washington said in an appeal to the high court.

The Obama administration has stood fast on the so-called contraceptive mandate, insisting that women employees and students must have access to birth control through their insurance. Providing contraceptives free of charge will greatly reduce unwanted pregnancies and abortions, they say.

And, they argue, it’s one thing for the religious institutions to say they should not be required to pay for contraceptive coverage. It’s quite another for them to refuse even to notify the government so that other arrangements can be made.


If a religious nonprofit institution notifies the government of its objection, that step “relieves the employer of any obligation to provide, arrange or pay for the coverage to which it objects,” said Solicitor Gen. Donald Verrilli in response. That, he said, should be sufficient to protect the groups’ rights to religious freedom, the government argues.

These disputes have been heard in federal courts across the country for several years. Most judges have ruled for the administration and its “opt out” plan for religious groups. They said notifying the government of a religious objection did not put a “substantial burden” on anyone’s freedom of religion.

But in September, the 8th Circuit Court in St. Louis took the side of the church-based institutions and said that requiring them to cooperate with the government would “substantially burden” their freedom of religion.

That split all but assured the Supreme Court would step in to resolve the matter.

The justices said Friday that they would hear several appeals in a single, combined case.

The case is the fourth major test of President Obama’s healthcare law to come before the court. Twice, the justices have rejected broad challenges to the law. But in 2014, they said that the Christian family that owns the Hobby Lobby chain of craft stores may refuse to provide contraceptives as part of their insurance coverage.

The ruling turned not on the 1st Amendment but on a federal law known as the Religious Freedom Restoration Act. That law says the government may not “substantially burden a person’s exercise of religion” unless the requirement is the “least restrictive means of furthering a compelling government interest.”

From the start, the Obama administration said churches, synagogues and other houses of worship were exempt from the healthcare law’s requirement. But the administration refused to extend the full exemption to religiously affiliated schools, hospitals and other groups because those institutions may have hundreds of employees who do not share the religious view of their employers.


The cases to be heard, in addition to the appeal from the archbishop of Washington, were brought to court by Priests for Life, East Texas Baptist University, Geneva College in Pennsylvania, Southern Nazarene University in Oklahoma and the Little Sisters of the Poor, an order of nuns who care for more than 13,000 elderly poor people.

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Several of the groups who sued said they did not object to their employees receiving contraceptive coverage, so long as they had no part in the process. They said the government could pay for the contraceptives directly rather than requiring insurers to cover the cost of them.

“It’s ridiculous for the federal government to claim, in this day and age, that it can’t figure how to distribute contraceptives without involving nuns and their health plans,” said Washington attorney Mark Rienzi who represents the Little Sisters of the Poor.

But women’s rights lawyers said employers should not be allowed to stand in the way of their employees receiving benefits that are required by law.

“It’s unfair and harmful for some employers and schools to use their religious beliefs to deny women vital healthcare that makes them more economically secure,” said Gretchen Borchelt, vice president of the National Women’s Law Center.


The high court will hear arguments in the case early next year and issue a decision by the end of June.

For more on the Supreme Court, follow @DavidGSavage on Twitter.


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