The U.S. Supreme Court on Monday took action in a case over how religious not-for-profit employers must meet the Affordable Care Act requirement to cover birth control for employees—a move some say could be significant for those employers.
Others, however, disagree, saying the action changes nothing legally.
The Supreme Court told a lower court to reconsider its decision not to grant the University of Notre Dame further protection against the birth control mandate.
Some see the court's mandate as indicating the government could lose the case during a rehearing and possibly lose other similar cases, but others contend it's a routine action that could result in the same outcome.
“The Notre Dame case has been the centerpiece of the government's argument” against allowing religious not-for-profits total exemption from acting to provide contraceptive coverage to employees, said Mark Rienzi, a lawyer for the Becket Fund for Religious Liberty, which has been active in a number of other contraceptive cases. “The key thing they've argued from for 13 months has now been taken out by the Supreme Court.”
But Douglas Laycock, a University of Virginia law professor, said the Supreme Court's decision Monday doesn't carry much significance. He called the court's order “routine” and said it's likely the lower court will reach the same decision as it did the first time.
The case, University of Notre Dame v. Burwell, centers on the question of whether the university, as a religious not-for-profit, should have had to fill out a form notifying its insurers of its decision not to provide contraceptive coverage for its students and employees, so the insurers and the government could provide that coverage to employees and students instead. The government designed the form as a workaround for organizations like Notre Dame, which object to the contraception mandate for religious reasons.
The U.S. Court of Appeals for the 7th Circuit upheld a district court's ruling last year, denying the university's request for relief from the requirement that it fill out the form. Organizations like Notre Dame say having to take any action to facilitate birth control coverage violates their religious principles.
The Supreme Court vacated that decision Monday and told the appeals court to reconsider the case in light of a separate Supreme Court case decided last year, Burwell v. Hobby Lobby Stores Inc. The court decided in the Hobby Lobby case that closely held companies do not have to cover contraceptives in employee insurance plans if the corporate owners have religious objections to birth control.
Whether the 7th Circuit changes its mind in the Notre Dame case likely depends, in part, on which three judges there hear it, Rienzi said. But recent decisions in other cases, such as Hobby Lobby, are on Notre Dame's side when it comes to the bigger issue of religious freedom, he said.
“I think the writing is pretty clear that the government's got to go find other ways to pursue its goals without involving religious ministries,” Rienzi said. “The idea that the government couldn't possibly give out contraception to people without making the religious ministries get involved has always been a weird idea.”
Notre Dame is, at the moment, the only religious not-for-profit to sue over the law's contraception coverage mandate but still be subject to its requirement, Rienzi said. Other organizations, even when they lost their cases, won injunctions, Rienzi said.
Laycock, however, said the 7th Circuit will likely decide the same way it did the first time, saying the Hobby Lobby ruling doesn't change anything. Hobby Lobby focused on significantly different issues, he said.
“It gives them another chance to argue in the 7th Circuit, but I don't think it's nearly that big of a deal,” Laycock said. Organizations have lost on the same issue in several other courts of appeal, he said.
Paul Keckley, managing director of Navigant's Center for Healthcare Research and Policy Analysis, also thinks the 7th Circuit will likely reach the same conclusion as it did originally.
But he said the Supreme Court's decision Monday puts the issue back on many organizations' radars.
“If you sit on the board of an organization that's a nonprofit with a strong religious affiliation I think you're having that discussion and it may have been one that you thought was settled before,” Keckley said.
Since Notre Dame sued over the form, the government has actually created a different workaround. The newer workaround requires organizations opting out of providing contraceptive coverage to notify the government and give the government information about their healthcare plans rather than having to fill out a form.
Religious not-for-profits, however, are still upset over that workaround, saying they don't want to be involved in facilitating coverage in any way.
Follow Lisa Schencker on Twitter: @lschencker
