Contraception, Round Two

National Law Journal

Contraception, Round Two
Marcia Coyle
02/16/2015

Challenges by religious nonprofits to the contraceptive coverage requirement in the Affordable Care Act have reached the U.S. Supreme Court, and more are expected as federal appellate courts soon will rule on a wave of pending cases.

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A ruling by the U.S. Court of Appeals for the Third Circuit on Feb. 11 was the most recent appellate decision on the fundamental claim that the government's means of accommodating nonprofits' religious objections to contraceptive insurance violates the Religious Freedom Restoration Act.

That appellate court, in four Pennsyl vania cases brought by a religious college, the Roman Catholic bishop of Pittsburgh and the Roman Catholic dioceses of Pittsburgh and Erie, unanimously rejected the claim that their religious exercise was burdened by the government's accommodation — a self-certification by the nonprofit that it objects on religious ground to the contraceptive insurance coverage.

"Even if we were to conclude that there is a burden imposed on the appellees' religious exercise, we would be hard-pressed to find that it is substantial," Judge Marjorie Rendell wrote for the panel in Geneva College v. Secretary, U.S. Dept. of Health & Human Services.

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Matt Bowman, senior counsel at Alliance Defending Freedom, one of the lawyers for the challengers in the Third Circuit case, said the organization has not decided whether to seek en banc review of the panel decision or to petition the Supreme Court.

However, he said, the justices "need to review" the issues raised by these cases. "There are over 40 religious nonprofit cases in the lower courts," he said. "I think the Supreme Court will have its choice of vehicles."

Ayesha Khan (left) of Americans United for Separation of Church and State, which supports the government's position in a number of the religious nonprofit cases, disagreed with Bowman on the need for Supreme Court review.

-snip- "You've got four circuit courts now reaching the same conclusion, largely by the same analysis. That strikes me as the paradigmatic reason that the court should not get involved."

GRANT, VACATE, REMAND

The justices will take their first close look at one potential vehicle during their Feb. 20 conference, which includes a petition filed by the University of Notre Dame. The university, represented by Jones Day's Matthew Kairis, asks the high court to issue what is commonly known as a "GVR" — grant the petition, vacate the lower court decision and remand the case to the lower court.

Kairis argues that the Seventh Circuit's rejection of the university's claim that its religious exercise was substantially burdened by the self-certification process was made without the benefit of the high court's decision in Hobby Lobby.

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The Obama administration counters that the university has not met the requirements for a GVR.

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The Becket Fund for Religious Liberty has filed an amicus brief supporting Notre Dame. Americans United for Separation of Church and State has filed a brief on behalf of three Notre Dame students who intervened on the government's side.

A second petition raising similar issues is pending before the justices: Michigan Catholic Conference v. Burwell from the Sixth Circuit — which, like the Third, Seventh and D.C. circuits, rejected the religious nonprofits' arguments. Unlike the Seventh Circuit, the Sixth Circuit did consider the Hobby Lobby and Wheaton College rulings when it denied en banc review to a group of Roman Catholic nonprofits in Michigan and Tennessee.
The D.C. Circuit case — Priests for Life v. U.S. Department of Healthand Human Services — was decided by a three-judge panel in November. The plaintiffs recently moved for review by the full circuit court.

Four other circuits — Seventh, Eighth, Tenth and Eleventh — recently heard arguments in religious nonprofits' challenges and could rule at any time.
With so many circuits preparing to rule, Bowman of Alliance Defending Freedom predicted one of the high court's criteria for review — conflict among the circuits — is likely.

But even if no split develops, he said, the justices still might step in. Remember, he noted, "The Supreme Court took King v. Burwell [this term's challenge to Affordable Care Act subsidies] when arguably there was no conflict at the time."

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