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Supreme Court Again Punts on Religious Issue in Obamacare Case

July 9, 2020, 8:56 AM

The U.S. Supreme Court dodged a critical question Wednesday when it handed the Trump Administration a win in a case over Obamacare’s birth control coverage rule—whether the Religious Freedom Restoration Act compelled the government to adopt broad exemptions to the requirement that employers provide health plans that pay in full for employees’ birth control.

The top court upheld new rules providing opt outs to employers who object on religious or moral grounds to the so-called contraceptive mandate implementing Obamacare’s women’s essential coverage provisions. Pennsylvania and New Jersey challenged the rules in this case.

The decision makes clear that exemption-eligible employers don’t have to comply with the contraceptive mandate or an accommodation put in place by the Obama administration, but the issue could arise again if a future administration takes those exemptions away or Congress passes legislation doing away with them.

U.S. Reps. Diana DeGette (D-Colo.), Judy Chu (D-Calif.), Barbara Lee (D-Calif.), and Lois Frankel (D-Fla.) already have announced plans to introduce legislation to prevent the exemptions from taking effect.

RFRA prohibits the government from passing any law that substantially burdens a person’s religious exercise, even a law of general applicability, unless it’s narrowly tailored to further a compelling government interest.

Punted Again

The high court “punted on the RFRA issue once again,” Joshua Blackman told Bloomberg Law. Blackman, who teaches Constitutional Law at South Texas College of Law, has written several briefs, articles, and books critical of Obamacare.

He referred to a previous decision in which the court declined to rule on nonprofit religious groups’ claims that the birth control mandate’s accommodation violated RFRA, Zubik v. Burwell.

Blackman agreed with Justice Samuel A. Alito Jr.'s statement in his concurring opinion that “the litigation will continue.” States opposing the exemptions will raise other arguments for invalidating them, Blackman said.

Additionally, if President Donald Trump loses the upcoming presidential election, the new administration likely will act to rescind the rules, Blackman said. That will bring the same question back to the Supreme Court in a few years, he said.

“If a future administration were to rescind these rules, questions about what RFRA can or does require, and what the Constitution safeguards against, would certainly resurface also,” Dena Sher, assistant policy director at Americans United for Separation of Church and State, told Bloomberg Law.

Sher noted that the Supreme Court didn’t say RFRA authorized the exemptions. “But more than that, the court didn’t address whether the broad religious exemption here is even constitutionally permissible,” she said. “It isn’t because it harms people by undermining their access to birth control,” Sher added.

Judicial Crisis Network Vice President and Senior Counsel Frank Scaturro acknowledged that the issue could come up if a future administration tries to rescind the conscience protections. But that would be “a serious mistake,” he told Bloomberg Law.

The court’s decision here and in prior RFRA decisions “offer no encouragement that a future administration would get away with eliminating the Little Sisters’ conscience protection even if
they were callous enough about religious liberty to do it,” Scaturro said.

Narrow Ruling

Justice Clarence Thomas’s majority opinion upheld the rules on the narrow basis that Congress gave the Health and Human Services, Labor, and Treasury Departments broad authority to develop rules implementing the ACA’s essential coverage requirements. Justice Elena Kagan, joined by Justice Stephen G. Breyer, agreed with that assessment.

The majority also held the agencies didn’t err by considering RFRA when they adopted the religious and moral exemptions. But it didn’t go so far as to say that RFRA required the exemptions, though Thomas acknowledged that “the potential for conflict between the contraceptive mandate and RFRA is well settled.” The mandate may violate the law, he wrote.

Alito, however, would have held that RFRA compels an exemption for employers with religious and moral objections to the contraceptive mandate.

The court previously held, in Burwell v. Hobby Lobby Inc., that the mandate substantially burdens religious rights of closely held corporations that objected to it on religious grounds, but the government might be able to narrowly tailor it to avoid infringing employers’ rights, as through an accommodation that would allow them to opt out.

In his concurring opinion, Alito reiterated the decision and added his belief that the mandate doesn’t serve a compelling government interest. Even it did, the government hasn’t show the Obama administration’s accommodation provided the least restrictive means of furthering that interest, he said.

“Once it was apparent that the accommodation ran afoul of RFRA, the Government was required to eliminate the violation,” Alito wrote. The exemptions cured the problem, he said. Justice Neil M. Gorsuch joined Alito’s opinion.

Justice Ruth Bader Ginsburg dissented in an opinion joined by Justice Sonia Sotomayor.

Other Litigation

Courts considering other cases in which the RFRA issue was raised likely will require attorneys to file supplemental briefings discussing the court’s opinion, Blackman said. These include DeOtte v. Azar, in which a group of objecting employers and individuals won an order blocking the government from enforcing the contraceptive mandate nationwide.

The U.S. District Court for the Northern District of Texas held that the contraceptive mandate violates RFRA as applied to employers and individuals who objected to the mandate on religious grounds.

The government initially appealed the decision, but withdrew its appeal. A group of states also appealed, but the U.S. Court of Appeals for the Fifth Circuit put the case on hold while the Supreme Court’s decision was pending.

Paul D. Clement, of Kirkland & Ellis LLP, argued for the Little Sisters. U.S. Solicitor General Noel J. Francisco argued for the government. Pennsylvania Chief Deputy Attorney General Michael J. Fischer argued for the state.

The case is Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, U.S., No. 19-431, 7/8/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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