WASHINGTON — The U.S. Supreme Court’s fall term is expected to feature cases on the constitutionality of the Health and Human Services’ mandate and abortion-facility regulations, legal analysts say.
In the high court’s new session, which began on Oct. 5, the justices have already heard arguments about the constitutionality of the death penalty in Kansas and Florida. Justice Antonin Scalia told ABC News on Oct. 20 he wouldn’t be surprised to see the court abolish capital punishment.
The court’s docket also includes cases about government workers’ unions, racial preferences in college admissions and voter districts.
But in early to mid-November, court watchers predict that the Supreme Court will likely decide whether it will also review a case concerning religious nonprofits’ objections to the federal government’s so-called accommodation to their objections to providing, in employee health-insurance plans, all government-approved forms of birth control, including abortifacients and sterilization.
The court may also choose to hear an appeal filed by several Texas abortion facilities that are challenging a state law that requires abortionists to have hospital-admitting privileges and imposes strict building codes on those facilities.
The law was upheld by the 5th Circuit Court of Appeals, but the Supreme Court in June stayed that ruling until the justices decide whether to hear the appeal. Mississippi state officials have also filed an appeal asking the court to review a similar law requiring hospital-admitting privileges for physicians who perform abortions.
“It’s a near certainty that the court will grant review of at least one of the cases challenging the HHS mandate accommodation,” Ed Whelan, president of the Ethics and Public Policy Center in Washington, told the Register.
Whelan also said: “It’s also very likely that the court will have an abortion case on its docket.”
Circuit Courts’ Rulings
The likelihood of the Supreme Court reviewing a contraceptive mandate case was strengthened when the U.S. Court of Appeals for the 8th Circuit ruled on Sept. 17 that the government had “substantially burdened” two Christian schools’ exercise of religion.
The 8th Circuit ruling was the first time that a federal appellate court had determined that religious nonprofits, under the threat of paying heavy fines, should not be forced to comply with the U.S. Department of Health and Human Services’ contraceptive mandate.
“I think the court hearing a case is extremely likely, because, now, there is a circuit split,” said Matt Bowman, senior legal counsel with Alliance Defending Freedom, a Christian legal firm that represents several plaintiffs in lawsuits challenging the mandate.
Alliance Defending Freedom represents Geneva College and Southern Nazarene University, two Christian schools that have appealed their cases to the Supreme Court. Bowman told the Register that the court would consider their petitions during a conference on Oct. 30.
“The court could take one of two courses,” Bowman said, “in ruling whether the federal government can decide what conscience means for religious organizations.”
In its “accommodation,” the federal government requires religious nonprofits to fill out a form stating their objections to contraception coverage. The form then forces the insurer or a third-party administrator to provide separate birth-control coverage. Critics say that accommodation is little more than an accounting gimmick that still ensnares the religious nonprofits in the government’s contraceptive scheme.
“Everything about this conflict in the courts flows from the government’s decision to be stingy with the exemption and to try to choose whose religious freedom gets protected and whose doesn’t,” Mark Rienzi, senior counsel with the Becket Fund for Religious Liberty, told the Register. The Becket Fund is a public interest law firm that represents religious nonprofits, including EWTN, in challenging the HHS mandate.
Little Sisters’ Challenge
The Becket Fund also represents the Little Sisters of the Poor, a congregation of women religious who serve the elderly poor in more than 30 countries.
On Oct. 13, the Becket Fund filed a brief with the Supreme Court, urging it to take up the Little Sisters’ case. The brief was filed in response to the federal government’s argument that asked the court not to choose the sisters’ challenge.
“Our brief argues that the government doesn’t get to pick who it faces in court,” Rienzi said. “And there are very good reasons for the court to pick the Little Sisters’ case.”
Rienzi said the court should select the Little Sisters’ challenge because the case, in addition to citing the Religious Freedom Restoration Act, also includes a First Amendment argument that focuses on the question of whether the government has the authority to pick and choose who receives a religious exemption from the mandate.
“The government basically says to the sisters that if they let the bishops control and fund the nursing homes for them, then the government would consider them exempt,” Rienzi said. “But because the sisters insist on running them on their own, the government is going to force them to cover those drugs.”
Said Rienzi, “That’s a really weird thing for the government to say to anybody.”
Appellate Judges’ Concerns
Also increasing the odds that the Supreme Court will hear an HHS mandate case is the fact that at least 18 federal appellate judges have voiced concerns about the mandate. In late September, three judges with the 5th Circuit Court of Appeals said in a dissenting opinion that other courts had committed a “grave error” in accepting the government’s arguments.
The three 5th Circuit judges said the government’s position boils down to “simply disagreeing with the (ministries’) views of what Christian theology demands.” The judges concluded with a reminder that liberty of conscience is the “foundation” for the First Amendment’s religion clauses, adding: “Conscience is the essence of a person’s moral identity. Thomas More went to the scaffold rather than sign a little paper for the king.”
Also on Sept. 3, five judges with the 10th Circuit of Appeals released a sharply-worded dissent to that court’s decision not to reconsider its three-judge panel’s July 14 decision that rejected the Little Sisters’ religious-freedom claims. The five judges predicted that the contraceptive mandate will be struck down whenever it reaches the Supreme Court.
Rienzi said he expects the Supreme Court to decide in early to mid-November whether it will accept the Little Sisters’ case or bundle it with some of the other six nonprofit cases currently on appeal to the high court: “It is very likely the court will take the case now that there is a split and that the federal government now agrees with us that the court should decide the issue.”
Brian Fraga writes from
Fall River, Massachusetts.