Supreme Court Will Hear Obamacare Abortion-Inducing Drugs Case. Why That’s Important for Religious Freedom.

COMMENTARY Courts

Supreme Court Will Hear Obamacare Abortion-Inducing Drugs Case. Why That’s Important for Religious Freedom.

Nov 2nd, 2015 3 min read
COMMENTARY BY
Elizabeth Slattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

Today, the Supreme Court announced it will take up seven cases challenging the Obamacare requirement that non-profit employers offer their employees health care coverage that includes Plan B, ella, and other potentially life-ending drugs and devices, contraception, and sterilization. Plaintiffs in the cases the Court will decide include Little Sisters of the Poor; Priests for Life; East Texas Baptist University; Southern Nazarene University; Geneva College; the Archdiocese of Washington, D.C.; and other religious charities.

If these organizations do not comply with the mandate, they could face devastating fines of up to $100 per employee per day.

After religious organizations objected to the mandate, the Obama administration created a so-called “accommodation” that requires employers to notify the Department of Health and Human Services of their religious objection to providing such coverage in writing.

The government thinks this scheme satisfies the employer’s religious beliefs because the notification initiates the process of insurers and third-party administrators providing the mandated coverage at no cost to the insured.

Why the Little Sisters of the Poor Disagree With the Government

However, non-profits like the Little Sisters of the Poor, who care for the elderly poor, disagree. They refuse as a matter of conscience to accept this alternative because they would still be participating in the machinery that provides abortifacient drugs and devices through health plans they are ultimately paying for. For groups like these, that could mean millions of dollars a year diverted from their missions to pay for onerous government fines.

Several federal appeals courts have reviewed cases challenging this accommodation brought by Christian colleges and ministries such as Catholic Charities, Priests for Life, and Little Sisters of the Poor.

These employers maintain that the Obama administration’s “accommodation” violates the federal law that bars the government from substantially burdening the free exercise of religion. The government may overcome this prohibition only if it can show that the burden is the least restrictive means of furthering a compelling interest.

What the Court Has Already Ruled On

If this sounds familiar, that’s because the Supreme Court decided a similar case in the summer of 2014. In Burwell v. Hobby Lobby, the Court held that certain for-profit employers—such as the closely held family-run craft store chain—could not be forced to violate their religious beliefs by paying for potentially life-ending drugs and devices as part of their employee health insurance plan.

The majority opinion, written by Justice Samuel Alito, pointed to the accommodation offered to non-profit employers as proof that the government could advance its interest in providing women with free contraception while not trampling the religious beliefs of employers. The Court did not, however, address whether the accommodation itself could pose a substantial burden.

Now the Court is presented with that very issue. From the challengers’ perspective, this accommodation imposes such a substantial burden by triggering morally objectionable health care coverage, and they are not insulated from complicity in the facilitation of potentially life-ending drugs and devices.

They see the accommodation as “merely … another way to violate their religion.” But the government says these employers are mistaken about their role in the process. The Obama administration maintains that it is federal law—not the employers’ act of signing a form—that leads to the provision of drugs and devices.

If that were the case, why, then, does the government continue to insist that the form be used on pain of fines?

While nearly all the appeals courts that have looked at the issue have ruled in favor of the administration, the U.S. Court of Appeals for the Eighth Circuit noted that the government must “come forward with evidence that the contraceptive mandate and the accommodation process are the only feasible means to distribute cost-free contraceptives to women employed by religious organizations and that no alternative means would suffice to achieve its compelling interest.”

Indeed, there are plenty of other ways for the government to provide no-cost contraception directly to women who want it—without hijacking employers’ health plans and trampling on religious freedom.

In the Hobby Lobby decision, the Court discussed the possibility of the government directly providing or paying for these drugs and devices while allowing employers to obey their consciences. Thus, if the Court holds the administration to the high standard laid out by the Eight Circuit, it may be a herculean task for the administration to prove the accommodation is the only way to ensure that women have access to free contraception.

You don’t have to agree with any of the organizations before the Court or share their opposition to abortion to recognize that the government should not be able to force Americans to set aside their deeply held beliefs simply because they step outside the four walls of a church to serve the poor, heal the sick, or educate the next generation.

We expect the Court to hear oral arguments in early spring and release a decision by the end of June.

This piece originally appeared in The Daily Signal