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10 years and many lawsuits later, battles over religion and birth control coverage just keep getting messier

The Supreme Court will once again weigh in on the Affordable Care Act’s contraceptive mandate.

Nuns with the Little Sisters of the Poor, including Sister Celestine, left, and Sister Jeanne Veronique, center, rally outside the Supreme Court in Washington on Wednesday, March 23, 2016, as the court hears arguments to allow birth control in health care plans in the Zubik vs. Burwell case.
Jacquelyn Martin, Associated Press

SALT LAKE CITY — The Supreme Court has heard two cases on religion and birth control in the past six years. But, as justices prepare to hear a third challenge to the Affordable Care Act’s contraceptive mandate this week, several issues remain unresolved.

Legal experts don’t agree on what the federal government owes to religious objectors to birth control or employees harmed by faith-based exemptions. They hold different views on the scope of religious freedom law and whether asking employers to notify insurers about their religious objections places a substantial burden on faith.

And most notably when it comes to the current case, scholars are divided over whether the Trump administration violated the law when it expanded religious and moral exemptions to the contraceptive mandate in 2017. There’s no consensus on who deserves such an exemption and which policymakers have the authority to decide.

The Supreme Court will take up all of these issues when it hears Little Sisters of the Poor v. Pennsylvania on Wednesday by phone. The eventual ruling could bring long-awaited clarity to battles over religion and birth control or ramp up tensions yet again, said Elizabeth Sepper, a law professor at the University of Texas.

“This case could be resolved in dozens of different ways,” she said.

Birth control conflict

Battles over the Affordable Care Act’s coverage requirements began soon after the law was passed in 2010. Health care leaders, policymakers and business owners clashed over what types of medication should be available free of charge and which employers should be granted exemptions.

In 2011, health officials in the Obama administration finalized the list of preventive services that needed to be covered, which included a wide range of birth control options and sterilization procedures. The next year, they issued final rules on faith-based exemptions, determining that only “churches, their integrated auxiliaries and conventions or associations of churches” could sidestep the contraceptive mandate.

Leaders at faith-based colleges, nonprofits and health care organizations, as well as some people of faith who owned businesses, objected to the narrow exemption, arguing that the birth control rules violated their religious freedom. The Obama administration tried to compromise with them and, in 2013, released guidelines for a new accommodation process, which enabled employees of faith-based nonprofits to access free contraception directly from their insurer.

“The accommodation was meant to balance the religious interests of employers and the health care interests of employees,” Sepper said.

But many people of faith remained unsatisfied, including for-profit business owners who were not eligible for the exemption or the accommodation. Hobby Lobby and two other companies took their concerns all the way to the Supreme Court, where, in June 2014, they won the right to access the accommodation available to religiously affiliated nonprofits.

Although the Hobby Lobby ruling settled some of the controversy surrounding the contraceptive mandate, it did not address battles over the accommodation process. In 2016, the Supreme Court agreed to hear a second case on the Affordable Care Act’s birth control rules focused on religious accommodations.

This second case, Zubik v. Burwell, ended without a clear winner. The justices unanimously decided to send it back to the lower courts to give government officials and religious leaders more time to work out a deal.

“There was no final judicial ruling,” said Kevin C. Walsh, a law professor at the University of Richmond in Virginia.

There was also no resolution outside of court. President Donald Trump was elected before the Obama administration and faith-based nonprofits settled their fight.

About 10 months after taking office, the Trump administration attempted to end conflict between religious freedom and the contraceptive mandate for good. Health officials released new rules enabling any private company with religious or moral objections to birth control to access exemptions.

“Even if (federal religious freedom law) does not compel the religious exemptions, ... the departments believe they are the most appropriate administrative response to the religious objections that have been raised,” policymakers explained.

The latest fight

The current Supreme Court case centers on these new religious and moral exemptions. Justices will consider whether health officials had the authority to enact such policy changes and whether they followed the proper procedures when they put them in place.

“In some ways, this is just a very wonky administrative law case. It gets really in the weeds of how you make rules, what kind of notice you must give and how seriously you should take the feedback you receive,” Sepper said.

Leaders from Pennsylvania and New Jersey are arguing against the Trump administration rules. They claim health officials violated federal government procedure when they solicited feedback on their planned exemptions.

“Rather than commenting on possible implementation of new rules, the public was invited to comment on whether the agencies should abandon existing rules” the states explained in one of their Supreme Court briefs.

The Trump administration rejects this characterization, as well as the claim that health officials acted outside their authority. So do attorneys representing the Little Sisters of the Poor, a faith-based nonprofit that will defend the rules alongside the U.S. solicitor general.

“Given the history of the federal government’s changing positions, it made sense to have a party in the case who had been advocating a consistent position all along,” Walsh said. The Little Sisters of the Poor were part of the 2016 case challenging the Obama administration’s accommodation process.

As Sepper noted, Supreme Court justices could take Wednesday’s oral arguments — and their eventual ruling — in a number of directions. They could focus on how the rules were implemented, the structure of the Affordable Care Act or the grounds on which lower courts ruled in favor of Pennsylvania and New Jersey. They could also use religious freedom law to determine how much authority federal officials have to act to protect people of faith.

The case could have a “wide-sweeping impact on how the government exempts religious or moral objectors” moving forward, Sepper said.

Unending conflict

Sepper is among the legal scholars hoping that the Supreme Court will rule against the Trump administration and the Little Sisters of the Poor. Religious freedom law doesn’t justify offering exemptions that help some people of faith at the expense of others, she said.

“You can’t lift religious burdens from one believer and impose them in a way that substantially burdens those with other religious beliefs,” she said, noting that the Trump administration’s rules disregard the concerns of employees seeking birth control coverage.

Other religion and law experts interpret religious freedom law differently. They believe the Trump administration’s actions were justified since there are ways to provide free birth control coverage without involving religious employers’ health plans.

Federal religious freedom protections “are fairly sweeping,” Walsh said. They “should govern the implementation of all other federal law” that hasn’t been exempted.

Regardless of their perspective on the case, legal scholars believe battles over the Affordable Care Act’s contraceptive mandate are unlikely to end when the Supreme Court issues its ruling in Little Sisters of the Poor v. Pennsylvania sometime this summer.

If the decision rests on how the exemptions were implemented, then the Trump administration could try to restart the rule-making process. If the decision is focused on religious freedom law, then health officials might still have to rethink the rule offering exemptions based on moral, rather than religious, concerns.

“It is possible that the court could uphold the religious exemption and not uphold the moral exemption,” Sepper said.

Even a broad ruling upholding the Trump administration’s actions might not amount to much if Trump loses the 2020 election, said Frederick Gedicks, a law professor at Brigham Young University. Regulatory guidelines like exemptions to the contraception mandate are pretty easy to adjust when power changes hands.

“Every change in administration brings the possibility of repeal or amendment,” he said.