America, The Next Hobby Lobby Case Is Heading For The Supreme Court

The justices could again weigh women's health care against religious liberty.

A federal appeals court on Thursday became the first in the nation to rule that the so-called contraceptive accommodation under the Affordable Care Act violated the religious beliefs of a nonprofit organization.

Seven other federal appellate courts have already rejected similar challenges, and lawyers in those cases are seeking Supreme Court review. Thursday's decision all but guarantees that the justices will step in and settle the dispute.

The conflict arises from Obamacare's contraceptive mandate, a topic the Supreme Court also grappled with in its controversial Hobby Lobby decision. And that earlier ruling plays into the latest dispute.

The contraceptive mandate generally requires employers to provide female workers with insurance coverage for a range of birth control methods and related services at no cost to the workers. Churches and other legally defined "religious employers" are exempt from the mandate outright, but nonprofits and other organizations with religious objections aren't.

Federal regulations provide an "accommodation" to the latter groups: Fill out a form, note your religious objections to the contraceptive mandate, and then let the government and your insurance provider sort out how to provide the necessary coverage to your employees. 

In a case out of the 10th Circuit, the Little Sisters of the Poor are also challenging the contraceptive accommodation on the
In a case out of the 10th Circuit, the Little Sisters of the Poor are also challenging the contraceptive accommodation on the grounds of religious liberty.

Some nonprofits have a problem with even filling out the form. In their view, the very act of opting out of the mandate is akin to being complicit in providing birth control -- which, in turn, violates their deeply held religious beliefs. 

On Thursday, the U.S. Court of Appeals for the 8th Circuit agreed in two combined cases that the accommodation process itself imposed a "substantial burden" on the beliefs of four organizations -- a Christian services provider and its affiliated college, and two other religious colleges -- because of the prospect of "significant monetary penalties" if they didn't comply with a process they believe leads to the immoral acts. In particular, the plaintiffs point to certain forms of contraception that they believe to be "functionally equivalent to abortion on demand."

The St. Louis-based court said it wasn't its place to judge the sincerity of those beliefs.

"It is not our role to second-guess [the nonprofits'] honest assessment of a difficult and important question of religion and moral philosophy," Judge Roger Wollman wrote for the court, "namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another." 

With this language, the 8th Circuit split from seven other circuit courts, all of which have ruled in favor of the federal government. 

Last month, for example, the U.S. Court of Appeals for the 2nd Circuit tossed a lawsuit from a group of nonprofits associated with the Roman Catholic Church who also complained that the contraceptive accommodation burdened their religious beliefs because it implicated them in something they considered to be at odds with their faith.

The Manhattan-based court didn't doubt the sincerity of that belief, but still concluded that it had the authority to judge whether the burden of filling out the form, "as an objective legal matter," was substantial.

"Whether the regulation objected to imposes a substantial burden is an altogether different inquiry" from the beliefs themselves, the 2nd Circuit said. The former is chiefly for the courts to decide, or else the system would be flooded with all kinds of religious claims that could not be judged.

Here is where the 8th Circuit relied on an entirely different reading of Burwell v. Hobby Lobby, the 2014 Supreme Court case that extended religious accommodations to closely held for-profit corporations with similar objections to Obamacare's birth control mandate. In the 8th Circuit's eyes, Hobby Lobby seems to provide religious objectors with carte blanche to decide for themselves which government regulations count as substantial burdens on their religious liberty.

"The question here is ... whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage," Wollman wrote. "Their affirmative answer to that question is not for us to dispute."

A spokesperson for the White House said it was "disappointed" in the ruling and declared that "the contraceptive accommodation process strikes the proper balance between ensuring women have equal access to healthcare and protecting religious beliefs."

The Becket Fund for Religious Liberty, which represented Hobby Lobby Stores in its winning challenge, is already looking forward to a new showdown.

"The government keeps telling the Supreme Court, 'Move along, nothing important here,' in hopes that the Court will ignore this crucial issue," said Lori Windham, senior counsel for the Becket Fund, in a statement on Thursday. "But with today's decisions, the Court will have great reason to decide this issue in the next term."

The Becket Fund has filed briefs in the other appeals before the Supreme Court, which could decide by late September whether any of them is worth taking up.