After Hobby Lobby, This Is the Next Big Contraceptive Mandate Fight

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As every religious freedom organization under the sun claims a victory with today's Hobby Lobby decision, there's one aspect of Justice Samuel Alito's opinion that is surely giving some groups pause. 

The main thrust of the decision is a victory for Hobby Lobby and its allies, determining that the contraceptive mandate violates a religious freedom law as applied to "closely held" businesses. The tricky part is the proposed work-around for the government to continue providing contraceptive coverage, as suggested in the decision: an existing accommodation for religious non-profits wishing to be exempt from the mandate could also apply to the relevant for-profit companies as a more religious freedom-friendly alternative to current practice. That accommodation is itself the subject of a handful of legal challenges from religious freedom groups who believe that it violates their religious beliefs by, essentially, asking them to fill out a form. 

At least one federal appeals court seems to believe that today's decision bodes poorly for that accommodation: hours after the Supreme Court issued its opinion, the 11th Circuit Court of Appeals granted an injunction blocking enforcement, pending appeal, for the Eternal Word Television Network (ETWN), a non-profit. Circuit Judge William H. Pryor, Jr. argued in his concurring opinion that ETWN is likely to succeed in its challenge of the accommodation, specifically to the requirement that it fill out a form in order to exempt itself from the contraception mandate. Pryor addressed the defense of the accommodation — that filling out the form is not a "trigger" for contraceptive coverage, with one word: "Rubbish." In more words: 

Pryor goes on: "even if we assume, for the sake of argument as the Supreme Court did in Hobby Lobby, that the mandate serves a compelling governmental interest, the accommodation provision is not the least restrictive means to address that." 

Interest groups agree with this take. The U.S. Conference of Catholic Bishops, for instance, said in a statement that "justice has prevailed," with today's Supreme Court decision, adding that "the Court clearly did not decide whether the so-called ‘accommodation’ violates RFRA when applied to our charities, hospitals and schools, so many of which have challenged it as a burden on their religious exercise." The Catholic bishops' group, which vocally opposed both the mandate and the non-profit compromise accommodations added that "we continue to hope that these great ministries of service, like the Little Sisters of the Poor and so many others, will prevail in their cases as well.” Similarly, the Family Research Council's Tony Perkins issued a statement proclaiming that "it is our hope that lower courts will follow the Supreme Court’s lead and protect non-profits like Little Sisters of the Poor, Priests for Life, and Wheaton College from the unfair HHSMandate." 

Today's majority opinion from Justice Alito certainly does not, it should be noted, settle the question of whether that accommodation is legal or not — addressing that question seems to be the next logical step in sorting out the legal details of the mandate, as the Hill noted. Earlier this year, the court let one such challenger, Little Sisters of the Poor, to temporarily make up their own form instead of using a government-provided one in order to access the accommodation, while their case is pending. Alito's opinion, however, stops far short of affirming the arguments of those groups fighting the compromise, despite what USCCB's statement seems to suggest. Here's the paragraph from Alito that should worry those groups: 

Although [The Department of Health and Human Services] has made this [accommodation] system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful. 

The National Review points to another passage that some groups opposed to the mandate have focused on: 

“We do not decide today whether [the accommodation] complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”

But the Review's Ed Whelan argues that the latter of the two passages essentially means nothing for those opponents worried about the accommodation sticking: "Alito only means that the objection to the accommodation is not to “providing insurance coverage” per se,"  but instead is to "providing a self-certification that has the consequences of making the certifier morally complicit in the provision of objected-to drugs and devices." 

However, SCOTUSBlog's Lyle Denniston agrees that Alito's lead opinion, along with Kennedy's brief concurring opinion, seem to strongly suggest that, if we are to take the court literally, the court believes the current accommodations for non-profits are enough to protect the religious freedom of the corporations who object to providing that coverage. "It is rather difficult to read those comments by those two Justices as anything other than a declaration that religiously oriented owners of closely held companies must be satisfied with letting the “middle man” take on, in their place, the obligation to provide the birth-control coverage," he writes, while noting that the issue itself was not directly before the court and is still unresolved.  

In other words, we have some idea of the majority's current thinking about the mandate's accommodations, but we just don't know how they'll actually settle the issue when presented with a specific legal challenge from non-profits. 

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