(This story was updated at 5 p.m. ET.)
The U.S. Supreme Court decided Friday to hear yet another challenge to the Affordable Care Act, this time involving lawsuits brought by religious not-for-profits that oppose having to play any part in providing birth control to employees.
The justices decided in private conference Friday to hear parts of seven cases filed by religious not-for-profit organizations. The organizations are challenging an Obama administration policy that says if they want to opt out of the ACA's contraception mandate, they must submit a form to their third-party administrator or provide information to HHS so the government can arrange contraception coverage.
The religious not-for-profits say such requirements make them complicit in providing birth control in violation of their religious beliefs. They argue such a requirement violates the Religious Freedom Restoration Act.
The government, meanwhile, has argued in court documents that the workarounds do not impose a substantial burden on the religious not-for-profits, and that the courts should not disregard the “significant interest of employees who may not share” their employers' religious beliefs.
Seven circuit courts have sided with the government, and one has sided with the religious not-for-profits. The plaintiffs include the Little Sisters of the Poor, an order of nuns that operates nursing homes in several states, as well as a number of religious colleges and the Roman Catholic archbishop of Washington, among others.
The Supreme Court will likely hear the consolidated cases in March, said Mark Rienzi, a lawyer for the Becket Fund for Religious Liberty, which is backing the Little Sisters case.
Rienzi said during a call with reporters that the government will now have to explain to the justices why “it's forcing nuns” to help their employees get contraception.
“Even though the government has its own system of providing people health insurance ... it insists on making use of the Little Sisters' health plan and other people's health plans to make those plans provide contraceptives,” Rienzi said, referring to the government insurance exchange. He said Little Sisters could face $75 million in fines over the first year alone if it refuses to comply with the government's mandate.
Rep. Trent Franks (R-Ariz.) also called the Supreme Court's decision to hear the cases Friday “encouraging.”
“This administration believes whenever bureaucratic rules interfere with religious people, government trumps God,” Franks said in a statement.
Others, however, believe the government has the stronger case.
“The bottom line in these cases is the religious nonprofits are not just trying to exempt themselves from providing contraception, they're trying to prevent their secular insurers from providing contraception as well, and I don't think the court is going to go that far,” said Douglas Laycock, a law professor at the University of Virginia. “I think that's a very major line to cross.”
He noted that Justice Anthony Kennedy, who is often the swing vote in Supreme Court cases, didn't seem prepared during the court's last major decision on the ACA's contraceptive mandate—the Hobby Lobby case—to say that sometimes employees will simply have to go without contraception coverage. In the Hobby Lobby 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.
In Hobby Lobby, Kennedy wrote a concurring opinion agreeing that part of the reason to rule in favor of Hobby Lobby was because there were less restrictive ways to make sure its employees got coverage than forcing it to directly provide it. He cited the accommodation afforded to religious not-for-profits as one of those less restrictive ways, saying the accommodation “equally furthers the government's interest but does not impinge on the plaintiffs' religious beliefs.”
Elizabeth Sepper, an associate professor of law at Washington University, said the decision in Hobby Lobby hints that the justices may think a substantial burden on religion is anything that a religious objector says it is. But she still believes the justices will draw a line with these new cases and side with the government.
“If having to ask for an accommodation from a law is a substantial burden on religion, then everything is a substantial burden on religion,” Sepper said.
