Supreme Court faces new challenges to Obamacare's 'contraceptive mandate'

Demonstrators gathered outside the Supreme Court Tuesday (March 25) as it considered a case in which businesses challenged the contraception mandate of the Affordable Care Act. RNS photo by Adelle M. Banks

Demonstrators gathered outside the Supreme Court Tuesday (March 25) as it considered a case in which businesses challenged the contraception mandate of the Affordable Care Act. RNS photo by Adelle M. Banks

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WASHINGTON — The Supreme Court is about to climb back into Americans' bedrooms.

Sixteen months after ruling narrowly that companies with religious objections cannot be forced to pay for employees' contraceptives, the court faces a chorus of cries from religious charities, schools and hospitals seeking to get out of the birth control business altogether.

The justices are scheduled to review several petitions Friday asking them to overturn federal appeals court decisions that would force the non-profit groups to opt out of the "contraceptive mandate" included in the Affordable Care Act, rather than receiving the blanket exclusion granted churches and other solely religious institutions.

If they agree to hear one or more of the cases, it will mark the fourth time in five years that President Obama's prized health care law has come before the high court. And it will put the battle between religious freedom and reproductive rights front-and-center in next year's presidential race.

On one hand, the court has saved Obamacare from legal destruction twice, in 2012 and again this year. But it ruled last year that closely-held corporations, such as arts-and-crafts chain Hobby Lobby whose executives object to contraception, could opt out of the mandate that lawmakers included among preventive services employers must insure at no cost to their workers.

The solution, the court said, would be for those companies to inform the government or their insurance providers in writing that they would not pay for birth control, at which point the insurer would pay for it directly. But religious non-profits that already had been granted such an accommodation without going to court say even writing a letter or filling out a form makes them complicit.

The petitions to a court generally protective of religious rights come from Catholic leaders in New York, Washington, D.C., and elsewhere, as well as religious schools, universities, hospitals and charities. Among them are the Little Sisters of the Poor, who received a visit from Pope Francis during his recent trip to the nation's capital.

Lawyers for the Catholic nuns argue in their petition that "the government has put them to the impossible choice of either violating the law or violating the faith upon which their lives and ministry are based." It says the nuns believe that the opt-out method offered as a solution "would make them morally complicit in grave sin."

Until last month, none of the federal appeals courts to hear the complaints sided with the non-profits' claim that the Religious Freedom Restoration Act shields them from complying with the law. The U.S. Court of Appeals for the District of Columbia Circuit, in a case brought by the Archbishop of Washington, said those who opt out "are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms."

Perhaps tipping its hand, the Supreme Court in several cases blocked those rulings from taking effect until the appeals process plays out. Otherwise, non-profits could have been liable for fines of up to $100 per day for each uncovered worker.

Then in September, the 8th Circuit Court of Appeals came down on the other side, ruling for CNS International Ministries and Heartland Christian College that what matters is what the objectors believe, not what the opt-out method provides.

"We conclude that compelling their participation in the accommodation process by threat of severe monetary penalty is a substantial burden on their exercise of religion," the court said.

That ruling created a split among appeals courts that the Supreme Court is likely to resolve. Even the Obama administration, which had been on a winning streak in lower courts, urged the justices to take up the issue.

The battle, like the Hobby Lobby case that preceded it, pits reproductive rights against religious liberty.

More than 99% of sexually active women ages 15 to 44 have used at least one type of birth control, according to the Guttmacher Institute, which conducts research on sexual and reproductive health and rights. It says about 43 million women are at risk of unintended pregnancies.

Abortion rights groups say any additional obstacles placed in their way, including employer exemptions, raises the risk of unplanned and risky pregnancies.

“The women who work for these employers will lose out," says Leila Abolfazli, senior counsel for heath and reproductive rights at the National Women's Law Center. "They will be on their own to figure out a patchwork system."

Religious freedom groups say the Obama administration can guarantee women coverage for contraceptives without forcing employers with religious objections to provide it.

"The government picked a fight that was unnecessary," says Gregory Baylor, senior counsel for Alliance Defending Freedom, which represents four Christian universities in Oklahoma. “If the government was truly interested in accommodating everybody, they could do it.”

Whatever the Supreme Court decides, it's not likely to end the dispute. A ruling for the non-profits could prompt for-profit corporations to seek the same deal. And a District of Columbia district judge ruled in August that the anti-abortion group March for Life did not have to comply with the law on moral, rather than religious, grounds.



  1. Just keep in mind that Obamacare does not cover vasectomies, one of the safest and efficient birth control method available. Talk about discrimination!!

  2. The nuns don’t have a leg to stand on here. They are not providing the contraceptive services, they are not paying for it. They are simply letting their employees chose their own coverage. There is no religious liberty to control the choices one’s employees make. Unlike Hobby Lobby, the employers insurance company isn’t being asked to do anything here.

    None of these “religious freedom groups” appear to be making arguments concerning facts of this case. The employers are not being compelled to provide contraception here in any conceivable fashion.

    Accommodation has already been made here. But that is not what the Christian employers want. They want to impose on others in the name of their faith.

  3. Because nobody lobbied for it. One cannot fault legislation for failing to provide a service which was not requested by those proposing and voting on it.

  4. Re: “The Supreme Court is about to climb back into Americans’ bedrooms.”

    … because the Religious Right petulantly refuses to get out of them. Got it.

  5. Obama lacks any diplomatic or empathetic skills, ergo, the worst President ever. Any company that wishes to deny contraceptive measures be included in the insurance they provide to their employees are well within their rights to do so. Contraception is a cheap buy, less expensive than most aspirins….so what’s the big deal? To bait Churches or religiously-minded companies with threats is truly a war on religion itself. Contraception is really an elective choice, not a necessity to the health of America. Drop it, Obama, and go rename another mountain or attend another funeral. That is your legacy.

  6. I have yet to hear of an advocacy group stumping for vasectomy coverage. If you know of any, feel free to bring them up.

    The same can’t be said of female contraception. There are literally hundreds of advocacy groups trying to subsidize or ease the distribution of such things.

  7. The contraception mandate was lobbied for in the ACA statute. Your opinion of it does not change the fact that there was a demand for it. Nor do you represent facts in an honest manner. Female contraception is not a “cheap buy” by any stretch. It requires prescriptions or medical implantation.

    I have yet to see support for the Nuns here which didn’t rely on misrepresentation of facts. The Churches are simply trying to continue the conservative attacks on the ACA by any means necessary.

    There is no good faith basis to their suit here. The objection to a clearly reasonable accommodation is garbage. The fines are because they are deliberately harming the rights of employees without a reasonable cause.
    They are not being asked to provide the contraception, they are not being asked to pay for it to be provided, they are not making any choices concerning the insurers who do are. They are just annoyed that their employees may want this sort of thing.

  8. Here is one very large advocacy group supporting men and birth control:

    “Services offered at Planned Parenthood health centers vary by location. Some of the services include:

    *checkups for reproductive or sexual health problems
    *colon, prostate, and testicular cancer screenings
    *condoms and vasectomy
    *erectile dysfunction and premature ejaculation services, including education, exams, treatment, and referral
    *general health care and routine physical exams
    *jock itch exam and treatment
    *male *infertility screening and referral
    *STD testing and treatment
    *urinary tract infections testing and treatment

    Use our health center locator to find the nearest Planned Parenthood health center that offers the services you need.”

  9. From the perspective of a Catholic nun, they should be annoyed that anyone in their employment would opt for contraception. It is against Catholic morality and can be viewed as a wink of acceptance if not protested. Society needs to worry more about real medical need and not the frivolous demand for artificial contraception. Keep your legs closed and your zipper up. That’s free.

  10. “From the perspective of a Catholic nun, they should be annoyed that anyone in their employment would opt for contraception.”

    But expecting a legal right to interfere with such personal decisions, especially ones where they are not involved in whatsoever, is beyond reasonable or even moral.

    It goes to the heart of a level of narcissism common to certain religious folk. That one’s claim of personal moral superiority somehow gives them license to demand anything they want from others.

    The idea that you have to coerce others into following “Catholic morality” through such strong-arm tactics shows how little morality is actually present. It is bullying and nothing more.

    “Keep your legs closed and your zipper up. That’s free.”

    What I do with my legs and zipper are none of your business, nor ever will be. Thank you for demonstrating that this is not about morals or legal rights, but a desire to impose your will on others.

  11. This is just a war against religion fueled by bigots who know very well that an acceptable program could be set up that would not require any involvement at all of the nuns and yet accomplish what the Obama says is its goal. It is the Obama Administration doing the dragging not the nuns who just want to be left alone.

  12. It’s about using common sense to end a ridiculous argument. Why don’t we cover everyone who wants eye lifts or pouty lips? Employers have the right to dictate the terms of what insurance they offer their employees. Many company’s don’t offer dental or eye care…..yet, condoms and BC pills are somehow critical! ?????

  13. Deacon John said, “It is the Obama Administration doing the dragging not the nuns who just want to be left alone” to force everyone else into conformance with their church’s sincerely held myths and fallacies.

  14. What is ridiculous is the idea that you and the Nuns seem to think self-righteous indignation is license to force people to do what you want.

    Three things about insurance you don’t understand.
    1. You are not reading the facts closely here (or deliberately ignoring them). The nuns insurance doesn’t offer contraception, and that’s OK. The employees have an opportunity to get their own which does. Yet the nuns still are not happy here. Even though they are not providing or paying for it.

    2. Insurance policies have mandatory, government set, minimums for coverage. The upside to the ACA is that it got rid of a lot of insurance policies which bent workers over a barrel and provided little in return. An Insurer/employer never could just set what they want.

    3. Under the ACA if employers don’t offer dental or eye care, you can get your own. That is exactly what is the case for contraception here. Where is your objection?

  15. Also most insurance plans, including Hobby Lobby’s, covers vasectomies and viagra. No need for it to be lobbied for. As I said, no demand for it.

    Please by all means provide evidence there are people stumping for Congress to amend the ACA to include it. Stating that PP provides the services is not actually answering the question.

  16. PP being the advocates that they are must have lobbied for men’s birth control coverage but then again they had other things on their minds plus they probably see the ACA as the end of their “non-profit” organization.

  17. Prove the nun’s beliefs are myths and fallacies. Then comment.

  18. 1. There is absolutely no rational basis for opposing contraception.

    2. Having tons of children is not a sane action in an age where infant mortality is not ever present anymore.

    3. The nuns’ belief that they have a right to control employee sexual behavior is a myth borne entirely of self-righteous delusion.

    4. The nuns’ belief that they are being imposed on here is also a myth. They are not paying for contraception. They are not providing it. The employees are doing it for themselves.

    There. Done.

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