Looking higher, Fed Gov’t asks SCOTUS to resolve religious mandate challenges

The federal government filed its response to the Little Sisters of the Poor Home for the Aged, Denver, Colorado (Little Sisters) Supreme Court petition. The government asked the high court to weigh in on the claims of faith-based organizations which assert that their free exercise of religion has been burdened by the federal government’s accommodation allowing those organizations to opt out of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) contraception mandate. The White House offered support for the government’s response, acknowledging that the Supreme Court should resolve the dispute.

Mandate and accommodation

Under the ACA, employer-sponsored plans offered by employers with 50 employees or more must meet certain coverage requirements. In particular, those plans must cover all FDA-approved contraceptive methods without copays or deductibles. While some religious employers are exempt from those requirements, others religious entities—ones that do not qualify for the exemption—may participate in an accommodation. The accommodation is designed to allow such an employer to relieve itself of the ACA mandate by certifying to HHS that it is opposed to providing coverage for contraception services. As a result of that certification, a third-party administrator provides for the coverage of the objectionable contraceptives.

Procedural history

The Little Sisters initially challenged the accommodation before a circuit court, which denied its request for a preliminary injunction to avoid the accommodation. The Tenth Circuit upheld that denial on the grounds that the accommodation did not violate the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb). The court reasoned that the accommodation did not constitute a substantial burden on the religious exercise of the Little Sisters, or the other faith-based organizations that joined their challenge, because those organization would not have to provide, pay for, or facilitate contraceptive coverage (see Prayers for injunctions go unanswered in appellate review of contraceptive accommodation, Health Reform WK-EDGE, July 15, 2015).

After the decision

Following the Tenth Circuit’s decision, Little Sisters filed a petition with the Supreme Court and the Tenth Circuit entered an order stating that organization did not have to comply with the accommodation until the Supreme Court rules on its case (see Little Sisters granted relief from the heat, Health Reform WK-EDGE, August 26, 2015). Then, although the Little Sisters did not request a rehearing, following a poll of the active judges in the circuit, the Tenth Circuit entered an order denying a rehearing. Five justices dissented on the grounds that a rehearing en banc was appropriate. The dissent criticized the decision of the court, saying “the opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty” (see Judges call majority ‘clearly and gravely wrong’ in contraception mandate case, Health Reform WK-EDGE, September 9, 2015). The Fifth Circuit also denied a petition for a rehearing in a comparable contraception mandate case.

Government’s response

Now, the federal government has joined the calls for a Supreme Court resolution of the matter. The government’s response asserts that although the Tenth Circuit and six of its sister circuits have found the accommodation to be consistent with the RFRA and Supreme Court precedent, the Eighth Circuit, “recently reached the opposite conclusion” in Sharpe Holdings, Inc. v. HHS (see Accommodation process substantially burdens religious exercise, Health Reform WK-EDGE, September 23, 2015). Accordingly, the government asked the Supreme Court to resolve the circuit split. Although the government requested that the high court resolve the issue, the response suggests that the Supreme Court should grant the petition for writ of certiorari in Roman Catholic Archbishop of Washington v. Burwell instead of the one in Little Sisters v. Burwell (see Demanding a better answer, Catholics ask SCOTUS for review, Health Reform WK-EDGE, July 1, 2015). The government asserted that the Roman Catholic Archbishop of Washington case was the “most suitable vehicle” for resolving the mandate issue.