Big News for the Little Sisters?

Government Says It Could Make More Changes to HHS Accommodation

WASHINGTON — After years of litigation over the Health and Human Services’ contraceptive mandate, the Obama administration signaled last month that it could make further changes to the controversial accommodation it provided the Little Sisters of the Poor and many other religious nonprofits.

Could this striking admission undermine the government’s case? That’s the question court watchers are asking now.

The government’s admission appeared on page 14 of the first of two supplemental briefs filed in response to an unusual order from the justices.

After oral arguments in Zubik v. Burwell were held on March 23, the justices directed both sides to provide new solutions to the impasse.

“Although the court should not require a change, the accommodation for employers with insured plans could, at some cost, be modified to operate in the manner posited in the court’s order,” read the government’s first brief responding to the court order, filed on April 12.

The accommodation directs religious nonprofits to file paperwork that confirms their objections to the Health and Human Services’ contraceptive mandate. The Little Sisters and other plaintiffs have argued that the workaround actually “hijacks” their insurance plans to provide abortion-inducing drugs and other objectionable services for their employees.

The Supreme Court, in its unexpected March 29 order, asked both sides to provide a formal response to “whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The justices also outlined one possible solution, based on the expectation that the plaintiffs would contract with an insurance provider for a health plan that did not include contraceptive coverage. 

“Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage and would not be required to submit any separate notice to their insurers, to the federal government or to their employees,” read the proposal.


Religious Freedom

In contrast to the wary, cautious language in the government brief, the religious nonprofits welcomed the court’s move.

“Thank goodness for the Supreme Court,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor and other HHS plaintiffs, including the Eternal Word Television Network (EWTN). The Register is a service of EWTN.

“If the court had not asked for additional briefs, we would not know that the government actually agrees that there are solutions for providing contraceptives that are more respectful of religious beliefs,” explained Rienzi in an April 20 statement marking the filing of additional briefs in the case.

“If only the government had thought about that five years ago, this litigation would not have been necessary.”

Michael McConnell, a leading authority on religious freedom at Stanford Law School, framed the government’s acceptance of further modifications as a “fatal” blow to its legal argument.

“The government admits that it could impose ‘the same legal obligations’ without any written notice,” noted McConnell in comments cited in an April 13 post on The Volokh Conspiracy blog at The Washington Post.

“This is a clear admission that the government has a less-restrictive alternative, which is fatal under the strict scrutiny required by RFRA.”

Indeed, while the court order focused attention on the mechanism for providing the contraceptive services to the Little Sisters’ employees, the larger legal issue is whether the HHS mandate and the accommodation violate the Religious Freedom Restoration Act (RFRA), a 1993 federal law that directs the government not to impose a substantial burden on religious freedom without a “compelling” state interest. When that interest has been established, the government must use the “least restrictive” means of furthering its interest. 

“The substantial burden that the government’s current arrangement undoubtedly places on petitioners’ religious exercise thus is simply not the least restrictive means of furthering [a] compelling governmental interest,’” read the April 12 brief submitted by the religious nonprofits.

During a press call on April 20, Rienzi noted that the government had not retreated from the “admission that less-restrictive means could work.”

“Under RFRA, they have given up their case, [though] they may not like accepting that fact,” he said.

Further, while the government’s allies have framed the Little Sisters’ objections as an attempt to impose their religious beliefs on their employees, and so bar access to contraception, the religious nonprofits’ briefs dismissed the political spin.

“So long as the coverage provided through these alternatives is truly independent of petitioners and their plans — i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card and a separate payment source, and offered to individuals through a separate communication — petitioners’ RFRA objections would be fully addressed,” read the April 12 brief.


Potential Solution

When the Supreme Court issued its order, it outlined a proposed solution for employers that contracted with insurance carriers.

The religious nonprofits’ brief noted that many plaintiffs had either self-insured plans or so-called “church plans.” Even so, it made clear that a solution could be found.

For example, the government could “require or incentivize” commercial insurance companies to provide plans that offered free contraceptives without involving the Little Sisters.

In a subsequent “reply brief” filed on April 20, the Little Sisters’ lawyers dismissed the government’s contention that it had already bent over backwards to accommodate the church groups’ objections.

“The government complains that it went to … ‘great lengths … to minimize any burden on religious exercise,’” with three rounds of rulemaking designed to address the problem, the reply brief stated. But the proposed rules did not adhere to the high legal standard set by RFRA, the brief argued.

It further noted that the previous “rulemakings included multiple instances in which the government belatedly embraced solutions as workable after telling courts that the then-current system was the least restrictive option.”

Now, the government has acknowledged that it could take further steps to modify the accommodation, but it has also called the religious nonprofits’ position “unworkable” and questioned whether state laws would permit contraceptive-only health plans.

So why did an ideologically divided court agree to issue this unusual order in the first place? 

Some legal analysts have suggested that the order reflected the court’s desire to avoid a 4-4 decision. But Stanford’s McConnell said that argument didn’t make sense, as the court’s liberal wing could have sent the cases back to the lower courts — a move that would generally benefit the government.

“Why explore alternatives unless there are doubts among the pro-government ranks on the court?” he asked.

Meanwhile, McConnell is very clear on one point: “The government’s brief seems to acknowledge the handwriting on the wall. Because it can use a less-restrictive means to accomplish its interests, it must.”


Highly Unusual Situation

That said, legal experts note that the high court’s order was extremely unusual, and thus it is tough to predict how the justices will respond to the two sets of briefs filled in April.

If the court’s proposed solution “is rebuffed, the justices may wind up splitting four to four and deciding nothing definitively, leaving intact a split among lower courts on the legality of the ACA [Affordable Care Act] birth-control mandate,” said Lyle Denniston at SCOTUSblog.

The Becket Fund’s Mark Rienzi told the Register that the court’s order clearly signaled that it is “looking to resolve the case this term and is actively seeking solutions, which is a great thing.

“The most likely course would just be a decision from the court ruling that the government’s current approach is impermissible under federal law, but pointing the government toward some of the many alternatives it could use to distribute these services without nuns.”