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.

Religious nonprofits’ objections percolated, states ask Supreme Court to brew decision

Sixteen states have filed an amicus brief asking the U.S. Supreme Court to grant certiorari in Houston Baptist University v. Burwell, a case filed by religious nonprofits challenging the Obama Administration’s accommodation to the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) contraception mandate. The states argue that circuits are split as to interpretations of Hobby Lobby and its effect on the accommodation, with some courts misinterpreting the Religious Freedom Restoration Act’s (RFRA) (42 U.S.C. §2000bb et seq.) substantial burden inquiry to evaluate whether a religious conviction has a substantial justification. In their opinion, “the issue has sufficiently percolated in the lower courts” and is ready to be adjudicated by the High Court. The brief argues that the states have an interest in protecting religion and in ensuring that the beneficial work of religious nonprofits will continue.


Religious entities that do not qualify as religious employers, including religious nonprofits, are not exempt from the contraception mandate. However, they can seek an accommodation by either executing an Employee Benefits Service Administration (EBSA) Form 700, certifying that they are nonprofit entities holding themselves out as religious organization opposed the provision of contraceptive services, or by notifying HHS in writing with the name of the organization, the nature of the objection, and certain plan information. The nonprofits’ third-party administrators then become responsible for the provision of contraception.

Underlying lawsuit

Religious nonprofits led by Houston Baptist University filed suit against HHS, alleging that the accommodations substantially burdened their religious exercise by making them complicit in the provision of certain FDA-contraceptive services that the entities consider abortifacients. The Fifth Circuit Court of Appeals overturned a trial court decision in the nonprofits’ favor by finding that they did not establish that the mandate or the accommodations substantially burdened their religious exercise or that they could make such a showing (see Mandate withstands religious challenge, providing contraceptives has ‘nothing to do with it’, Health Reform WK-EDGE, June 24, 2015). Houston Baptist and two co-plaintiffs filed a petition for certiorari with the Supreme Court, challenging the Fifth Circuit’s application of the RFRA and the High Court’s decision in Hobby Lobby (see Religious universities seek support from a higher authority, Health Reform WK-EDGE, July 15, 2015).

Amicus brief

The states filing the brief described their interest in ensuring that “courts do not demean religious beliefs.” They extolled the virtues of religious nonprofits and noted that preventing them from adhering to their religious beliefs could threaten their beneficial work. The brief argues that the RFRA substantial burden inquiry requires courts to determine whether the government has coerced a person to violate sincerely-held religious beliefs and whether that coercion is substantial. However, it maintains that some courts have misinterpreted that inquiry and instead judged whether the religious conviction itself has a substantial justification. In short, the states allege that the accommodation offered by the government requires the nonprofits to violate their religious beliefs, since the execution of EBSA-700 is a prerequisite to the provision of abortifacients, and that they will be faced with “draconian penalties” for noncompliance. The states urged the Supreme Court to hear the case, as “delay will not yield further clarity.”

Little Sisters gear up for round two before the Supreme Court

The Little Sisters of the Poor Home for the Aged (Little Sisters), a group of Catholic nuns, is going before the Supreme Court yet again in its challenge of the contraception mandate found in the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). This petition follows a lengthy Tenth Circuit decision upholding the district court’s denial of the preliminary injunction requested by Little Sisters after finding that the ACA and its regulations do not burden the free exercise of religion or violate First Amendment rights.

First challenge

The Little Sisters first challenged the government’s accommodation allowing religious organizations that were not exempt from the contraception mandate to file Employee Benefits Service Administration (EBSA) Form 700. This form notifies HHS of the organization’s religious objection, and submission to the insurer or third-party administrator puts the responsibility of providing the coverage on these parties. The Little Sisters were initially denied a request for preliminary injunction, but the Supreme Court granted relief pending appeal (see Supreme Court grants reprieve to nuns opposing contraceptive requirement, pending appeal, Health Reform WK-EDGE, January 29, 2014, and Little Sisters of the Poor file appeal in contraceptive challenge, Health Reform WK-EDGE, February 26, 2014).

The Little Sisters maintained that the government’s solution to the EBSA Form 700 was inadequate. The government created interim rules allowing an organization to simply write to HHS letting it know of a religious objection to contraception coverage, and HHS would do the rest to ensure that a third party provided the coverage. The Little Sisters stated that the rule further insists that they comply with the mandate and “facilitate the distribution of contraceptives in conjunction with their benefit plan, which is precisely what they have already said they cannot do.”

Mark Rienzi, lead attorney for the case, said that the Little Sisters consider involvement in the distribution of contraception to be immoral, and wish for an exemption. Instead, “the government insists that it can take over their ministry’s employee healthcare to distribute these drugs to their employees, while dismissing the Sisters’ moral objections as irrelevant.” The Beckett Fund for Religious Liberty theorizes that the court is likely to consider all of the petitions this fall, and, if granted the case would be decided prior to the end of the June 2016 term.

Highlight on Mississippi: State hopeful as Supreme Court silent on appeal at end of term

The Supreme Court’s silence at the end of its term regarding an appeal by the Mississippi in an action seeking to close the state’s only abortion clinic means that the clinic will likely remain open until the fall. The appeal came after the Fifth Circuit blocked Mississippi from enforcing a state law requiring clinic physicians to obtain admitting privileges to a local hospital.


It is settled under the Fourteenth Amendment that a woman’s right to choose to have an abortion is protected as a basic right. However, it can be limited the the state’s interest “in protecting potential life and the health of the mother,” as long as such regulations do not impose an “undue burden” or a “substantial obstacle to” the basic right to terminate a pregnancy before the fetus is viable. Only laws with an “incidental effect of making it more difficult or more expensive to procure an abortion” do not cause an undue burden.

The Mississippi law required all physicians associated with an abortion facility to have “admitting privileges at a local hospital and staff privileges to replace local hospital on-staff physicians.” Before the law was passed, Mississippi only required that facilities have a transfer agreement with a local hospital and a written agreement for backup care with a physician with admitting privileges, as well as at least one affiliated doctor with admitting privileges. Jackson Women’s Health Organization (JWHO), which brought the suit against the state, operates the only licensed abortion clinic in Mississippi, and only one of its three doctors has admitting privileges.

Fifth Circuit Decision

Previously, the Fifth Circuit prevented the state from closing the clinic while it attempted to comply with the law, holding that the law satisfied rational basis review but creates a substantial obstacle to a woman’s choice. The court found that the state had “essentially confirmed” that it would revoke the clinic’s license, having written in its opening brief that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license,” (Jackson Women’s Health Organization v. Currier, 5th Cir., July 29, 2014) (see Admitting privileges requirement for abortion clinics put on hold, Health Law Daily (July 31, 2014).

Attorneys for the state asked the Supreme Court to overturn the ruling of the Fifth Circuit, arguing that it “effectively places the clinic beyond the regulatory reach of the state.” The clinic argued that physicians in Mississippi who perform “similar or less safe surgical procedures in their offices,” such as colonoscopies and hernia repair, are not required to obtain hospital admitting privileges.

At the end of the term, the case was not named by the Supreme Court among those for which it granted certiorari, nor was it among those it rejected. The Court did grant a stay pending the filing of a petition for a writ of certiorari on a Fifth Circuit decision upholding a Texas law requiring admitting privileges for abortion clinics. The granting of a stay may be an indication that the Court will hear Texas’s full appeal. A decision in the Texas case could directly impact the Mississippi law in question because of the close similarities of the laws.