Next month the Supreme Court is almost certain to announce that it will hear arguments in a new challenge to part of Obamacare, now that a federal appeals court has struck down another part of President Obama’s namesake law.
Although the Affordable Care Act (ACA) merely requires that employers offering insurance include “preventive care” in their healthcare plans, Obama’s first secretary of the U.S. Department of Health and Human Services (HHS), Kathleen Sebelius, issued a regulation referred to as the HHS Contraceptive Mandate, which interpreted “preventive care” to include birth control and abortion-related services. This is the regulation that was ruled illegal as applied to religiously owned businesses in Burwell v. Hobby Lobby in 2014.
Various companies wholly owned and operated by religious people—such as Hobby Lobby Stores, Inc., which is owned by the Green family, who are Evangelical Christians—challenged the HHS Contraceptive Mandate for violating the federal Religious Freedom Restoration Act (RFRA), a law under which actions of the federal government that substantially burden a person’s religious beliefs are illegal unless the government proves that the burden is the least restrictive means to achieve some compelling public interest. (The HHS Contraceptive Mandate would also violate the First Amendment, but one rule of judicial restraint is that a court should issue a constitutional ruling only if no lesser authority can resolve the case.) The Supreme Court’s Hobby Lobby decision struck down the HHS Contraceptive Mandate for violating RFRA.
Responding to strong objections from religious organizations and being advised by top national authorities that the HHS regulation would not survive a court challenge brought by a church or religious ministry, the Obama administration made two carve-outs. The first is an exemption, but that can only be claimed by an actual house of worship (like a church) on other purely religious entity that is similar to a church.
The other is an “accommodation” for other faith-based groups, whereby they can fill out a certification form that will transfer their obligation to provide abortion-causing birth control to a third-party insurance provider. Many Christian colleges and similar entities brought suit, arguing that the accommodation still violates their conscience, knowing that signing the certification form meant that some other organization would now have a legal duty to participate in abortion-related matters.
Several federal appeals courts have ruled either that the accommodation is not a substantial burden on anyone’s faith, or that access to birth control is a compelling national interest. (It should be noted that these three-judge appellate panels have had liberal majorities.)
In this case, Sharpe Holdings, Inc. v. U.S. Dep’t of HHS, the U.S. Court of Appeals for the Eighth Circuit explained:
Even if the ACA requires that insurance issuers and group health plans include contraceptive coverage regardless of whether CNS and HCC self-certify, it also compels CNS and HCC to act in a manner that they sincerely believe would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty….
Applying RFRA’s “strict scrutiny” test, Judge Roger Leland Wollman wrote that “If one sincerely believes that completing [the certification form] will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear.” The court also held that the ACA mandate is not the least restrictive means to accomplish HHS’s objective of providing contraceptives.
The St. Louis-based court further reasoned, “Religious beliefs need not be ‘acceptable, logical, consistent, or comprehensible to others’ to deserve protection.” As a consequence, the appeals court held that the HHS Accommodation violates RFRA.
The plaintiff’s case was argued by Timothy Belz, a widely respected attorney in St. Louis who maintains a general practice but is also a committed Christian who regularly takes on religious-liberty cases.
Sharpe Holdings now creates what is called a “circuit split,” which is the most common reason the Supreme Court decides to take up an issue to establish a national rule. There are currently several petitions for review (called a petition for a writ of certiorari) pending at the High Court, brought by the most accomplished Supreme Court litigator in America today, former U.S. Solicitor General Paul Clement, a partner at the law firm Bancroft. The most well known of those cases are the Little Sisters of the Poor v. Burwell, a case previously reported on by Breitbart News.
The justices are expected to vote in October whether to take one or more of these cases. Now that there is a circuit split on the issue, it is almost certain that the Supreme Court will take the case for argument, likely in January or February 2016.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.