Hobby Lobby, the Sequel: Coming Soon to SCOTUS

The Supreme Court will take another crack at Obamacare’s contraception mandate.

The court agreed Friday to hear another lawsuit challenging the birth-control requirement, this one filed by religious nonprofits. Roughly two years after the Court rolled back the contraception mandate in Hobby Lobby v. Burwell, the nonprofits say the court needs to go a step further.

The contraception mandate isn’t particularly intertwined with the rest of Obamacare, so another ruling against it wouldn’t threaten the law as a whole. But the provision has become a political lightning rod, pitting women’s-health advocates against religious organizations.

And Friday’s decision to hear the contraception case might only be the beginning. The Court is widely expected to take up an abortion case later this term—setting the stage for high-profile rulings on both abortion and contraception, just months before the 2016 elections.

The contraception mandate

Obamacare requires most employers to cover certain preventive services in their employees’ health care plans, without cost-sharing like a co-pay or deductible. And, based on the recommendation of an expert scientific panel, the Health and Human Services Department included all Food and Drug Administration-approved contraceptives in the definition of preventive services.

Churches and houses of worship are exempt from the mandate. Religious-affiliated employers—like the nonprofits in this case—have a middle ground. They don’t have to directly provide coverage for contraception in their health care plans. And they don’t have to pay for that coverage, either.

Instead, they’re required to fill out a form registering their objections to birth control, and the duty for providing it shifts to their insurance companies.

The Little Sisters’ objection

A group of religious nonprofits, led by the Little Sisters of the Poor, an organization of nuns, says the workaround for religious-affiliated employers doesn’t go far enough.

They object to filling out the form that registers their religious objections to contraception coverage. Because they have to fill out that form, they say, HHS is making them participate in a process that still ends with their employees’ health care plans including contraception.

And they say that’s just as objectionable as providing it directly. They want to be exempted entirely from the mandate.

“It is all well and good for HHS to think it has threaded the needle and found a way for religious nonprofits to comply with the mandate without violating their religious beliefs, but ultimately it is for the religious adherent to determine how much facilitation or complicity is too much,” the Little Sisters said in a brief to the high court.

How this is different from Hobby Lobby

Hobby Lobby v. Burwell, the 2014 case in which the Court weakened the contraception mandate, was slightly different from today’s challenge. That case dealt with for-profit companies rather than nonprofits. Until the Court intervened, for-profit companies had to provide contraception coverage themselves; they didn’t have access to the “accommodation” that lets nonprofits shift the burden to their insurance companies.

The Obama administration argues that, by creating a different process for religious nonprofits, it has already tailored the contraception mandate so that it will impose the smallest possible burden on religious exercise—and that’s what the Religious Freedom Restoration Act requires.

Not surprisingly, the Little Sisters disagree. They argue that the two cases are extremely similar, and that courts are simply misapplying the obvious point of Hobby Lobby.

“Indeed, the burden here is not just analogous to the burden in Hobby Lobby; it is identical,” the Little Sisters wrote in their brief.

Oral arguments have not yet been scheduled and, as always, the Court did not explain why it took the case.