Depending on whom you ask, the Supreme Court risks overreaching into matters best left to churches or Congress as it considers yet another legal challenge to the 2010 health care law.
The justices got plenty of input ahead of Wednesday’s oral arguments about the issues in the law’s contraception mandate, with briefs from more than 70 groups representing theologians, prosecutors, federal lawmakers, states and women’s rights advocates.
The mandate requires most employers to offer birth control to their employees as part of health insurance coverage. Supporters say it protects public health and prohibits discrimination against women, while opponents say it undermines religious freedom.
The central issue is basically about filling out a government form: Must religious nonprofits take action in a procedure — called an accommodation — to be exempted from the mandate if they have objections to some contraceptive methods?
The Little Sisters of the Poor, an organization of Roman Catholic nuns, and dozens of nonprofits say the accommodation is a violation of the Religious Freedom Restoration Act, or RFRA, which prohibits the government from substantially burdening the free exercise of religion. The justices must decide the case — the fourth about provisions in the 2010 law — before the end of the term in June.
A group of 50 Catholic theologians told the Supreme Court in a brief that the answer to that question is solidly in religious and moral territory. Based on the Catholic moral tradition, compliance with the contraception mandate would involve them in formal cooperation with wrongdoing, the theologians wrote.
The seven federal appeals courts that have upheld the accommodation “erred by substituting their judgment” for that of the nonprofits “on the quintessentially theological question whether complying with the mandate would violate petitioners’ religious consciences,” the theologians wrote.
Rep. Robert C. Scott, D-Va., filed his own brief to say the answer to the question is solidly in policy territory. Members of Congress who had supported the religious freedom law in the past were surprised by the Supreme Court’s majority interpretation of RFRA in the 2014 case of Burwell v. Hobby Lobby, Scott wrote.
The Supreme Court sided with Hobby Lobby, an arts and crafts chain, in a 5-4 ruling that owners of “closely held” private companies don’t have to extend contraceptive coverage to employees if doing so violates the employers' religious beliefs.
That went beyond what the lawmakers thought the religious freedom law was intended to accomplish “and reneged on the promises RFRA’s supporters had given that federal civil rights would not be undermined by RFRA,” Scott, ranking member of the House Education and the Workforce Committee, wrote in the brief.
One federal appeals court sided with the nonprofits in this current challenge.
Other lawmakers weighed in on the case. A brief filed on behalf of 207 mostly Republican lawmakers, including Speaker Paul D. Ryan and other House leaders, as well as 32 senators, told the justices that courts must give deference to a religious nonprofit’s sincerely held belief that the accommodation is a burden on their religious freedom. This group included Democrats Daniel Lipinski of Illinois, who is Catholic, and Collin C. Peterson of Minnesota.
A group of Democratic lawmakers said in a brief that they did not question the sincerity of the petitioners’ religious beliefs. But the means for accommodation of those beliefs shouldn’t upend the careful balance between respect for religious freedom and Congress’ intent in the law to protect public health and prohibit discrimination against women, they said.
The brief was filed on behalf of 90 House members and 33 senators by House Minority Leader Nancy Pelosi of California, Rep. Jerrold Nadler and Rep. Louise M. Slaughter of New York, and Rep. Diana DeGette of Colorado.
The accommodation requires the nonprofits to self certify that they are a religious employer and have objections to providing some contraceptive methods to their workers by offering them health insurance. Failure to comply can mean millions of dollars in fines. Little Sisters of the Poor said it would face $75 million in fines per year for its 30 homes across the country where nuns care for the poor.
The case is one that could be affected by the death of Justice Antonin Scalia. Scalia’s vote would have seemed to give the religious groups the advantage, but the court is now more likely to split 4-4 and uphold a lower court ruling that leaves the contraceptive mandate in place for them. The Obama administration would be the winner in such a tie.
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