HHS Mandate Supreme Court Case Could Defer Employer Freedom of Conscience to Lower Courts

Published April 5, 2016

The changed composition of the US Supreme Court is complicating a case to decide whether an Affordable Care Act (ACA)-related mandate lawfully compels conscientious objectors to violate their religious beliefs.

A 4–4 tie among the justices, which is now possible because of the death of Justice Antonin Scalia and the lack of an agreement between Congress and President Barack Obama on a replacement, would require employers to comply with decisions made by their regional U.S. Circuit Court of Appeals, which disagree with one another on the constitutionality of the mandate.

The U.S. Department of Health and Human Services (HHS) requires employers to provide employees insurance coverage for contraceptives. In an attempt to accommodate conscientious objectors to this requirement, HHS allows employers to notify HHS of objections so the agency can work directly with the employers’ insurers to provide health plans covering contraceptives.

Petitioners, including Priests for Life and Little Sisters of the Poor, in seven cases, which have been consolidated to Zubik v. Burwell, argued before the Court on March 23 the HHS workaround effectively requires employers to aid HHS and insurers in offering plans contrary to the employers’ religious beliefs.

The government argued the HHS rule should stand because the state’s compelling interest in implementing the ACA, which the government claims to have done in the least restrictive way possible, outweighs employers’ conscientious objections.

Businesses and Cities Exempt

Daniel Blomberg, legal counsel of The Becket Fund for Religious Liberty and an attorney for Little Sisters of the Poor, says petitioners are asking for no more consideration than the federal government has granted nonreligious entities.

“The government exempted big businesses and big cities so that they didn’t face the inconvenience of changing their health plans,” Blomberg said. “The Little Sisters are just asking that their fundamental right to religious liberty receive at least as much respect as the convenience of businesses like Exxon and municipalities like New York City. There’s no good reason why the government can’t do that.”

Approximately one-third of Americans are exempt from the HHS mandate, wrote Constance Veit, director of vocations for Little Sisters of the Poor, in a March 18 op-ed for The New York Times.

Inconsistent Application 

Father Frank Pavone, national director of Priests for Life, says the HHS mandate unequally applies to employers at certain religious organizations while exempting others.

“[Priests for Life sends priests] into parish churches all over the country to speak, teach, and offer Mass,” Pavone said. “Those churches are exempt from the mandate, and we who send in the priests and share in the same beliefs do not share in the same exemption. It makes no sense, and it reflects how the HHS mandate, in making these distinctions—based not on the believers’ objections but based on their classification in the tax code—goes far beyond its authority and beyond anything Congress itself has done.”

Matt Bowman, senior counsel with the Alliance Defending Freedom, says the HHS mandate is unjustifiably inconsistent.

“There is no justification for treating religious colleges and nuns differently from church auxiliary groups when it comes to respecting their beliefs regarding a mandate that already doesn’t apply to so many people,” Bowman said. “[This restriction was] not imposed on millions of plans with grandfathered status, nor for groups that are auxiliaries of churches, or certain other kinds of plans.”

Freedom to Think

Bowman says the aim of the HHS mandate is not to ensure people have a right to access and use contraceptives, but instead to punish individuals and employers who disagree with the government.

“This mandate is about crushing groups that dissent from the government’s views about abortifacient items and birth control,” Bowman said.

Pavone says the petitioners’ concern in Zubik is not about private family planning decisions; it’s about whether the government may force employers to violate their conscience.

“Our lawsuit does not register any objection to any actions our employees may take in their personal lives, but only to actions the government is compelling us as employers to take,” said Pavone.

Dustin Siggins ([email protected]writes from Washington, DC. Michael Hamilton ([email protected]) is The Heartland Institute’s research fellow for health care issues and managing editor of Health Care News.

Internet Info:

Michael Hamilton, “Scalia’s Death Likely to Change SCOTUS Health Care Rulings,” Health Care News, The Heartland Institute, March 2, 2016: https://www.heartland.org/news-opinion/news/scalias-death-likely-to-change-scotus-health-care-rulings?source=policybothttps://www.heartland.org/news-opinion/news/scalias-death-likely-to-change-scotus-health-care-rulings?source=policybot