A federal appeals court on Thursday sided for the first time against an Obama administration policy intended to ensure that employees of not-for-profit religious organizations can get birth control at no cost.
The case is one of many working their way through the federal courts challenging a part of the Obama administration's policy mandating that contraception for women should be considered as one of the preventive healthcare services covered at no out-of-pocket cost under the Affordable Care Act. The decision creates a split in the circuit courts, increasing the likelihood that the U.S. Supreme Court will agree to hear a case on the issue.
A three-judge panel of the 8th U.S. Circuit Court of Appeals upheld a lower court's ruling that the government cannot force religious not-for-profits to participate in a government-designed workaround to the mandate.
Responding to objections, the Obama administration said not-for-profit religious organizations could instead submit a form to their third-party administrator or provide information to HHS so the government could arrange contraception coverage for their employees. Many religious organizations, however, argue that they would still be complicit in supplying employees with birth control, in violation of their beliefs.
On Thursday the 8th Circuit judges upheld a preliminary injunction barring the government from enforcing the policy against the groups that sued.
In light of the plaintiffs' "sincerely held religious beliefs, we conclude that compelling their participation in the accommodation process by threat of severe monetary penalty is a substantial burden on their exercise of religion,” wrote Judge Roger Wollman.
Wollman and the other two judges in the case, Steven Colloton and Duane Benton, were nominated by Republican presidents.
The government has argued in court documents that the coverage workarounds do not impose a substantial burden on religious not-for-profits, and that the courts should not disregard the “significant interests of employees who may not share” their employers' religious convictions.
Lori Windham, senior counsel with the Becket Fund for Religious Liberty, said in a statement that the new decision gives the Supreme Court a compelling reason to take up the matter. The Becket Fund is supporting similar challenges to the mandate on behalf of other religious not-for-profits.
"The government keeps telling the Supreme Court, 'Move along, nothing important here,' in hopes that the court will ignore this crucial issue,” Windham said. “But with today's decisions, the court will have great reason to decide this issue in the next term."
Seven other circuit courts have ruled in similar cases, but all of them have sided with the government.
“Even though it's 7 to 1, it becomes nearly certain that the Supreme Court will take one of these cases,” said Douglas Laycock, a law professor at the University of Virginia. Laycock noted that even though seven circuit courts have sided with the government on the contraception policy, other judges have expressed strong dissenting opinions.
The plaintiffs in seven similar cases have already petitioned the Supreme Court for review. The court's next term begins in October, at which point the justices will meet in conference behind closed doors to decide which cases to hear. Only four of the nine justices must vote to hear a case in order for the court to take it.
The Supreme Court has already granted stays in a number of the contraception coverage cases that have come out of the circuit courts, temporarily halting the government from enforcing the mandate. Those orders don't necessarily indicate how the Supreme Court might decide the issue, but they do show an interest in it, Laycock said.
James Blumstein, a professor at Vanderbilt Law School, agreed that the latest case might be headed to the high court. “You never want to predict what the court's going to do, but I think this has such high visibility, and if there's a split in the circuits … they may want to resolve the issue,” he said.
Leslie Griffin, a professor at the University of Nevada Las Vegas law school, pointed out that the 8th Circuit's opinion relied on different reasoning than the other circuit courts. As one example, the court focused on the burden a financial penalty would create for a religious not-for-profit, rather than the burden imposed by filling out a form.
The 8th Circuit also said the government could potentially find less restrictive ways to get birth control to employees of religious not-for-profits, such as helping them get coverage through the federal insurance exchanges, or supplying them with government-funded contraception at community centers.
That reasoning, Griffin said, is reminiscent of the Supreme Court's thinking when it ruled against the Obama administration in another case challenging the contraception policy: Burwell v. Hobby Lobby.
In that case the Supreme Court ruled in 2014 that the government cannot force closely-held companies to cover birth control for employees if their owners have religious objections to that coverage.
