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How the latest Obamacare challenge could expand and limit religious freedom law
The Supreme Court will hear oral arguments for Zubik v. Burwell, the latest faith-based challenge to the Affordable Care Act, on March 23. - photo by Kelsey Dallas
The Affordable Care Act celebrates its sixth anniversary on Wednesday, the same day the Supreme Court will hear the fourth challenge to President Obama's signature policy.

This latest appeal will be the second time faith-based objectors will argue that the law's contraception mandate violates their conscience rights a challenge that will put to the test, again, a federal law designed to prevent government from burdening the religious freedom of its citizens.

In Zubik v. Burwell, religiously affiliated nonprofits that object to birth control, including schools, hospitals and Catholic charities, contend that the ACA makes them complicit in arranging access to contraceptives for employees who otherwise wouldn't have that coverage under their employers' health plans. However, legal scholars agree the case has broader implications than the fate of the ACA's women's preventive health mandate.

"This case offers an opportunity to see whether the court in Hobby Lobby was recognizing RFRA as a huge carve out of federal statutes for religious activities or, in turn, as a little, narrow cul-de-sac," said Robert Tuttle, a professor of law and religion at George Washington University Law School.

He's referring to the high court's 5-4 ruling in 2014 that found the federal Religious Freedom Restoration Act protected religious owners of the Hobby Lobby craft store chain and other closely held corporations from complying with the contraceptive coverage mandate.

Adding to the uncertainty of how the court could define the scope of a law that seeks to balance religious protections and government interest is the recent death of Justice Antonin Scalia, who sided with the majority in the Hobby Lobby case.

When eight justices hand down a ruling before July 1, policymakers will have a clearer sense of the court's stance on religious freedom, and whether the concerns of religious objectors should be addressed through legislative means, observers said.

The argument

In the six years since the Affordable Care Act was passed, the government has faced more than 100 lawsuits including 56 initiated by faith-based nonprofits to its contraception coverage mandate, which requires employers to provide FDA-approved contraceptives and related services for workers and their dependents.

In response to the legal blowback, the administration has modified the contraception rule twice to accommodate faith-based nonprofits that didn't fit the IRS definition of a religious organization. After the Hobby Lobby ruling, the administration made a third change, offering the same accommodation to closely held corporations.

Houses of worship are exempt from the mandate.

Under the latest accommodation, religious nonprofits must notify the government of their objection to providing contraception coverage. The government then works with the employer's insurance company to ensure coverage for interested employees.

But that still hasn't satisfied some religiously affiliated nonprofits, including the Little Sisters of the Poor Home for the Aged, a charity run by Catholic nuns who minister to the elderly poor in nearly 30 care homes across the U.S. and additional locations around the world. The Roman Catholic Church condemns all forms of artificial birth control.

The Little Sisters filed their lawsuit against the government in September 2013 in Colorado's federal district court and after losing in the 10th Circuit Court of Appeals, petitioned the Supreme Court for a hearing. Like other religiously affiliated nonprofits, they claim the contraception mandate violates RFRA, which requires the government to find the least restrictive means of imposing its rules and regulations on religious objectors.

Petitioners in Zubik v. Burwell contend that the government has not proven that the current accommodation is the least restrictive way for nonprofits to exit the process by which their employees receive contraceptive coverage.

A better solution, the nonprofits argue, is to grant them the full-exemption houses of worship enjoy or to provide contraceptives through a process that doesn't involve them in any way, such as through the ACA health care exchange.

Under the current accommodation, the Little Sisters rightfully feel complicit in the government's goal to provide contraceptives to their employees, said Helen Alvar, a professor at George Mason University School of Law who authored an amicus brief in favor of the Little Sisters.

"The government is making the claim that the Little Sisters themselves don't have to swallow or implant anything, so what's the problem," she said. "But the Little Sisters are trying, in all aspects of their business practices, to walk the talk," meaning they cannot accept being involved in a process that separates sex from reproduction.

The Little Sisters case was consolidated with the six other cases involving religiously affiliated nonprofits because they all ask judges to consider whether the current accommodation is a substantial burden on their religious convictions, Tuttle said.

"It's a really ugly question the substantiality of burden but it's the one question that all the lower courts looked at (when deciding these cases.) All but one said that the religious nonprofits had not met the standard under the statute to have (the burden) be called substantial," he said.

Judging burden

Legal scholars don't agree on whether the Supreme Court justices will focus on whether the mandate poses a substantial burden on religious nonprofits to practice their faith. But if they do, the case could expose RFRA's potential weaknesses, Tuttle said.

"I'm really dubious of the government's ability or the court's ability to assess the burden on a religious organization," he said, noting that even theologians working within the same faith group can't agree on what violates moral teaching.

In RFRA-related cases in the past, the Supreme Court has chosen not to question the veracity of a petitioners' burden claim.

"It is not for the court to say that religious beliefs of the plaintiffs are mistaken or unreasonable," wrote Justice Samuel Alito in the majority opinion for the Hobby Lobby case.

Instead, the justices centered their ruling on whether the government complied with RFRA's requirement to provide religious groups the least restrictive path to obeying their faith and federal law. Ironically, Alito cited the current accommodation for faith-based nonprofits to show government is able to provide a less restrictive means by which the employees of closely held corporations could gain contraceptive coverage.

Because the makeup of the court has changed since Hobby Lobby, the burden test could be back on the table, said Robin Fretwell Wilson, a professor of law and the director of Family Law and Policy at the University of Illinois. If so, the petitioners in Zubik v. Burwell may have to articulate in Wednesday's hearing how signing a form or letter objecting to the mandate is morally problematic.

"These claims of complicity seem weird to a lot of people, like the students in my classes," she said. "They have a 'get over it' attitude."

What's lost in these reactions and what could be lost in the Supreme Court assessment of "substantial burden" is that beliefs regarding sexual morality are a core part of a faith group's teachings, Wilson said. For the petitioners, this case is about much more than writing a letter to the government explaining their concerns about birth control.

"The religious view at stake here is about life," she said. "It's not one of those 'whatever' religious views. This is central to the people complaining."

Relieving the burden

The Little Sisters of the Poor are the most high-profile plaintiff in Zubik v. Burwell. Their law firm, The Becket Fund for Religious Liberty, has confronted the 'get over it' attitude Wilson described by detailing the Little Sisters' concerns about contraception and highlighting that their end goal is not to keep the government from providing access to birth control, but, instead, not to force them to be involved in the process of carrying out the government's program.

Compared to the other petitioners, the Little Sisters are unique because they have insurance through a faith-based provider, Wilson noted. Additionally, their briefings to the Supreme Court have done the best job of spelling out the burden created by the current process.

The Little Sisters have argued that because of the way federal law is written, they not only have to notify the government, but they also have to approve the health plan their notification sets into action, Wilson said. Despite the government's accommodation, the Little Sisters feel embroiled in the provision of contraception coverage, which violates their convictions.

"That the government has given petitioners multiple options for violating their sincere religious beliefs instead of just one does not materially alter the substantial burden analysis especially when the penalties for non-compliance remain the same," the Little Sisters' brief from January states.

The Little Sisters, as well as the other religiously affiliated nonprofits, argue that they should have access to the same exemption available to houses of worship, because they are just as much guided by religious belief, said Hannah Smith, senior counsel for The Becket Fund.

"What the government is doing here is completely arbitrary. It's drawing a line to separate out the bishops from the nuns," she said.

However, Tuttle said the line being drawn doesn't discriminate based on strength of belief, but in hiring practices. Compared to religiously affiliated nonprofits, houses of worship are more likely to have a staff composed of people who share the same faith, he said, noting that it's hard to imagine the court erasing that distinction.

"It would involve unwinding a host of distinctions in federal, state and local law between houses of worship and other religious institutions," Tuttle said.

Potential outcome

Like many cases before the Supreme Court this year, Zubik v. Burwell will be affected by Scalia's death last month. Most commentators believe he would have sided with the religiously affiliated nonprofits.

One much-discussed potential outcome is a tie between the remaining eight justices, because the four justices in the minority opinion for the Hobby Lobby case are unlikely to change their stance.

If that happened, the current accommodation would still be law in most parts of the country. The eighth circuit court, which presides over Arkansas, Minnesota, Nebraska, the Dakotas, Iowa, Missouri and Arkansas, was the only court to rule in favor of religiously affiliated nonprofits.

Justice Anthony Kennedy, who sided with the majority in the Hobby Lobby case, is the most likely swing vote in Zubik v. Burwell, Tuttle said.

"I'd say Kennedy has shown his cards here. (In Hobby Lobby) he said that the accommodation the government has available for nonprofit organizations is a less restrictive means that meets the needs of people who are exposed to the risk of pregnancy," he said.

Although they'll face a tough legal battle, Wilson said she understands why the petitioners in Zubik v. Burwell have not backed down from arguing before the Supreme Court.

"We like to think of the courts as the place where we work out all these hard issues," she said.

But given the complexity of this case and RFRA-related decisions in general, it's important for advocates of religious freedom to be actively imagining legislative solutions to faith-based objections to the ACA, Wilson noted.

"We have to think about parallel strategies," she said. "They're another tool in the arsenal and they can be a lot less contentious sometimes."

Sen. Orrin Hatch, R-Utah, a key sponsors of RFRA when it was passed in 1993, said in an emailed comment that he hopes the Supreme Court will uphold the law's "robust protection for religious freedom" and avoid a legislative remedy.

"If the court dilutes RFRA's broad application or its strong standard for protecting religious freedom, Congress will have to respond," he said.
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