Contraception Mandate Once Again Up Before Supreme Court
The United States Supreme Court recently announced it will hear a challenge from faith-based nonprofit groups, led by Little Sisters of the Poor, on the Affordable Care Act’s contraception mandate. In the First Amendment, the right to religious profession and worship may be considered one of the absolute rights of individuals secured by law in the U.S. Constitution. The contraception mandate dilutes this fundamental right.
The mandate requires employers provide health insurance that includes contraception at no cost to employees. For many Christians, this directly conflicts with their “sincerely held beliefs” which hold all life is sacred. Such beliefs have been historically protected by the First Amendment’s Free Exercise clause and, more recently, under the Religious Freedom Exercise Act of 1993 (RFRA). As a result, many religious organizations including Little Sisters of the Poor, oppose giving or being complicit in giving contraception coverage and related services.
There are organizations exempt from this mandate. One are those who offered health insurance plans prior to March 30, 2010, next are those who have fewer than fifty employees, and lastly are classified as “Religious Employers and Integrated Auxiliaries”[i] (i.e. churches). In this case, Little Sisters of the Poor and the other petitioners are not included in the third category. The U.S. Department of Health and Human Services (HHS) has exempted some religious organizations but not all, thus they are burdening those organizations that are similarly situated.
Both the Third Circuit and Tenth Circuit have spoken: they do not respect the right of these organizations to profess their faith as they see fit, in direct violation of the First Amendment and RFRA. Both opinions ruled the “accommodation” requirement does not pose a significant hardship upon religious nonprofit organizations. [ii][iii] In fact, the Tenth Circuit held, “The accommodation scheme relieves Plaintiffs of their obligations under the mandate and does not substantially burden their religious exercise under RFRA, or infringe upon their First Amendment rights” [emphasis added].[iv]
These cases go against the precedent set by the Supreme Court in Burwell v. Hobby Lobby (2013). In that case, the Court rejected the HHS argument that Hobby Lobby and others waived their protections under RFRA when they became corporations. Corporations, the Court said, are people. As a result, they ruled the contraception mandate and its associated fines imposed a “substantial burden” upon those stores that refused to give contraception coverage to its employees. [v]The Supreme Court has granted review of these and several other cases.
By legal standards, penalizing an act means the act is unlawful. If organizations like Little Sisters of the Poor fail to comply with the mandate, then they are subject to significant economic sanctions ($100/day/individual or $2,000 annually/full time employee). This economic burden precludes them from professing their beliefs as they wish. In short, both decisions flout RFRA and, most importantly, the First Amendment.