March 25, 2014

After Hobby Lobby, a nonprofit legal challenge to the contraception requirement

Today, the U.S. Supreme Court heard oral arguments in two cases involving for-profit business owners’ objections to the Affordable Care Act’s contraception mandate. But depending on the outcome of these cases – Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius – the high court could end up considering the same issue again, this time in a challenge brought by religiously affiliated nonprofits. Indeed, the Supreme Court already has intervened; it recently delayed the enforcement of the mandate until the case involving nonprofits is resolved.

The new health care law requires most employers who provide health insurance to offer free contraceptive services to female employees. Houses of worship, as well as other religious organizations whose primary purpose is promotion of the faith (such as missionary groups), have always been exempted from the requirement.

Originally, the law treated religiously affiliated nonprofits (such as hospitals, schools and charities) the same way as for-profit businesses and other employers. But on Feb. 1, 2013, the Obama administration revised the regulations, allowing those organizations to opt out and have their insurance companies offer female employees a separate policy that provides free contraceptives. 

The administration’s revised regulations satisfied the objections of some religious nonprofits. But many others sued the government, arguing that the changes are cosmetic and that, at the end of the day, they will still be required to provide female employees with free contraceptives. Some religious groups, most prominently the Roman Catholic Church, teach that using any artificial birth control is immoral.  Others, such as evangelical Protestants, sanction the use of most birth control, but oppose some forms of emergency contraception (such as Plan B) because, they say, it can destroy an embryo.

So far, the federal courts have reached inconsistent results, with some deciding in favor of the government and others siding with the nonprofits, leading many legal observers to predict that the Supreme Court eventually will decide the issue.

The high court already has weighed in at a preliminary stage: On Dec. 31, 2013, the day before the mandate was to take effect, Justice Sonia Sotomayor issued a temporary injunction preventing the federal government from enforcing the revised regulations against a Catholic charity that runs hospices for the indigent called the Little Sisters of the Poor, as well as 400 other Catholic nonprofits. Less than a month later, the full Supreme Court agreed to extend the injunction until the case is resolved.

Even though the two cases heard by the court today involve for-profit businesses, the rulings in Hobby Lobby and Conestoga could impact subsequent cases involving nonprofits like Little Sisters. For instance, in the Hobby Lobby and Conestoga cases, the justices are likely to create a standard to determine if a law or regulation, like the contraception mandate, poses a “substantial burden” on someone’s religious liberty.

In creating this standard, if the high court makes it easy for a person or organization to show that the government has “burdened” their religious liberty, then Little Sisters and other nonprofits are likely to prevail when their cases are decided. If, however, the court makes it more difficult to establish this burden, it will be harder for nonprofits to win.

Topics: Church-State Law, Health Care

  1. Photo of David Masci

    is a Senior Researcher at the Pew Research Center’s Religion & Public Life Project.

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