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.

Religious universities seek support from a higher authority

Houston Baptist University (HBU) and two of its co-plaintiffs have petitioned the Supreme Court for certiorari, seeking to overturn the decision of the Fifth Circuit Court of Appeals rejecting their challenge to HHS regulations requiring coverage of all FDA-approved contraceptives as a violation of the Religious Freedom Restoration Act (RFRA) (42 U.S.C. §2000bb et seq.) (see Mandate withstands religious challenge, providing contraceptives has “nothing to do with it,” Health Reform WK-EDGE, June 22, 2015). The petitioners contend that: (1) the Court of Appeals incorrectly applied RFRA by “second-guessing” their belief that executing a form and submitting it to the government would make them complicit in their employees’ potential use of birth control methods that are abortifacients; and (2) the decision is inconsistent with the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc.

The petitioners

HBU and East Texas Baptist University (ETBU) are universities affiliated with the Baptist General Convention. Westminster Theological Seminary (WTS) is run by Presbyterian elders and educates people preparing for Christian ministry but is not affiliated with any one denomination or church; its legal status disqualifies it from exemption from the preventive services mandate as an independent auxiliary of a church. All three institutions contend that they provide generous health benefits for their employees but have never covered four FDA-approved methods of contraception that prevent the implantation of a fertilized egg; they consider such methods to be abortion.


The challenged regulations require religious organizations that are not recognized as churches under the tax code to attest to their religious objections by completing a form, which they must submit to the government and their insurer or third party administrator (TPA). The form legally authorizes the insurer or TPA to provide coverage of the alleged abortifacients to their employees. The petitioners believe that execution of the form is closely connected with the coverage; the coverage is not provided unless or until they execute the form.

The trial court granted summary judgment to the petitioners, ruling that self-certification under the HHS regulations substantially burdened the exercise of religion. It rejected the government’s arguments that: (1) any burden was so slight as to be de minimis; and (2) the connection between the certification and the employee’s use of the abortifacients was too attenuated because independent actions by others had to occur.

The trial court also ruled that requiring the certification was not the least restrictive means available to achieve the government’s compelling interests in preventing unwanted pregnancies, as RFRA requires. For example, the government could provide free emergency contraception at clinics.

Why take this case?

The petitioners stressed that the Supreme Court should hear this case because they would actually face onerous penalties if they refused to self-certify. The trial court had already entered final judgment. The Court had already stayed other rulings by courts of appeals pending its review.

There already are other petitions for certiorari pending involving the same issues and decisions by the D.C. Circuit and the Sixth Circuit (see Demanding a better answer, Catholics ask SCOTUS for review, Health Reform WK-EDGE, July 1, 2015; ACA’s contraceptive coverage provisions may not provide sufficient protection, Health Reform WK-EDGE, April 27, 2015).