Experts say the White House may have some advantages going into a U.S. Supreme Court case centering on questions of religious freedom and the Affordable Care Act's requirement that employers provide birth control coverage to employees.
But the government will also face questions about whether it truly has shown a compelling interest in making sure all women get contraception coverage. The justices are taking up the issue on Wednesday.
Religious not-for-profit groups are challenging an Obama administration policy that says if they want to opt out of the ACA's contraception mandate, they must notify their third-party administrator or provide information to HHS so the government can arrange contraception coverage. The not-for-profits say taking any part in helping their employees access birth control violates their religious beliefs.
So far, nine federal courts of appeal have considered cases on the issue, and eight of those courts ruled in favor of the government.
On Wednesday, it will be the high court's turn to hear arguments in the case. The case will likely be decided by the end of June.
The arguments Wednesday will likely focus on whether the Obama administration policy imposes a substantial burden on the religious not-for-profits, whether the government has a compelling interest in making sure the organizations' employees get birth control coverage and whether there's a less restrictive way of ensuring employees get that coverage, said Louise Melling, deputy legal director with the American Civil Liberties Union (PDF), which along with the National Women's Law Center coordinated the amicus briefs filed in the case siding with the government.
“There's no equally effective, less burdensome way to provide the birth control benefit,” Gretchen Borchelt, a vice president at the National Women's Law Center (PDF), said during a call with reporters.
If the current system for religious not-for-profits to opt out of the mandate qualifies as a burden, then almost any action could be considered a burden upon them, say those siding with the government in the case.
“Do we have to say anything's a burden just because a religion says it is?” asked Douglas Laycock, a University of Virginia law professor who filed a brief (PDF) in the case on behalf of the Baptist Joint Committee for Religious Liberty.
Those siding with the government also note that Justice Anthony Kennedy, often the swing vote on the court, already seemed to endorse the accommodation for religious not-for-profits in a previous decision.
In the Hobby Lobby case in 2014, the Supreme Court ruled that the government cannot force closely held companies to cover birth control for employees if their owners have religious objections. Kennedy wrote a concurring opinion in the case 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 birth control coverage than by forcing Hobby Lobby to provide it directly—such as the accommodation afforded to religious not-for-profits.
Those siding with the religious not-for-profits, however, say there are less restrictive ways for the government to accomplish that aim, such as by allowing employees at their organizations to get birth control coverage through the ACA's insurance exchanges.
They also argue that the government can't prove it has a compelling interest in making sure all women get birth control coverage.
“I would not accept the argument that the state has a compelling interest in forcing people to do anything that violates their conscience,” said Dr. Jane Orient, executive director of the conservative Association of American Physicians and Surgeons, which filed a brief (PDF) in the case siding with the religious not-for-profits.
Though Laycock believes the government will win the case, he also said the government will likely face scrutiny because it already granted a number of exemptions to the requirement that all employers supply birth control coverage. “That's a problem for the government,” Laycock said.
If Kennedy sides with the court's three most conservative justices ruling for the religious not-for-profits, the court may find itself in a 4-4 split, following the death of Justice Antonin Scalia.
If that happens, the lower courts' rulings would stand. The court could order the case re-argued in the future, but Laycock believes the court would instead hold back on issuing an opinion and take a different case on the issue once a ninth justice is in place.
Also, if the religious not-for-profits win, the case could inspire more ACA challenges, said Steve Friedman, a partner at Littler Mendelson, which advises employers on the ACA.
“There are many who oppose various and sundry provisions of the ACA and, to the extent that the courts keep these folks at bay, there are fewer potential challenges,” Friedman said. “If, however, litigants believe that the door has opened a bit, then there may be many more challenges than what we're seeing today.”