Explainer: What You Should Know About the Latest Contraceptive Mandate Challenge
Acton Institute Powerblog

Explainer: What You Should Know About the Latest Contraceptive Mandate Challenge

lsofpThe Supreme Court recently agreed to hear a challenge from religious nonprofit groups to federal government’s contraceptive mandate. Here are some answers to questions you may have about that case.

What is this case and what’s it about?

The case the Supreme Court will hear, Little Sisters of the Poor Home for the Aged v. Burwell, combines seven challenges to the Health and Human Services’ (HHS) contraceptive mandate.

To fulfill the requirements of the Affordable Healthcare Act (aka ObamaCare) the federal government passed a regulation (often called the “HHS Mandate”) that attempts to force groups into providing insurance coverage for contraceptives, sterilization, and abortifacients. Some religious groups, such as the Little Sisters of the Poor, objected on the ground that the requirement violates their religious liberty as protected by the First Amendment and the federal Religious Freedom Restoration Act (RFRA). HHS offered an accommodation which the Little Sisters found to be insufficient.

The Supreme Court will decide, as SCOTUS Blog explains, whether the government has offered nonprofit religious employers a means to comply and whether the whether HHS satisfies RFRA’s test for overriding sincerely held religious objections in circumstances where HHS itself insists that overriding the religious objection will not fulfill HHS’s regulatory objective—namely, the provision of no-cost contraceptives to the objector’s employees.

What was the accommodation and why was it rejected?

The proposed accommodation would require the Little Sisters to find an insurer who will cover all of the things they oppose: sterilization, contraceptive, abortifacients, etc. They would also be required to sign a form that triggers the start of that coverage of those items and procedures that they find objectionable. They believe that the accommodation does not prevent them from violating their religious beliefs.

Doesn’t the “religious employer exemption” cover the Little Sisters and similar non-profits?

No, the general exemption the HHS provides applies only to churches and certain types of church-like organizations. Most religious non-profits do not qualify.

Didn’t the Hobby Lobby case already resolve this issue?

Last year the Court agreed some owners of closely held for-profit corporations, like Hobby Lobby, have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point.

The Court found that the HHS mandate violated RFRA because it imposed a substantial burden (i.e., if the companies refused to violate their beliefs, they would face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel). The government also failed to satisfy RFRA’s least restrictive-means standard, since the government could assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections or extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate.

In that case, the companies can qualify for an exemption by fill out a form and submitting it to the government. This type of accommodation was already available to religious non-profits. But this is a procedure the Little Sisters, et al., find insufficient to resolve their religious objections.

Isn’t this merely a Catholic issue?

No. Many Protestant non-profits have similar religious liberty objections. The current case combines the cases that were brought by East Texas Baptist University, Southern Nazarene University, and Geneva College. Other groups who have brought similar lawsuits, such as Wheaton College, will also be affected by the outcome of this ruling.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).