Challengers in Zubik File Further Briefs


    By Hadley Heath

    The Supreme Court did something surprising last month -- Justices asked challengers in Zubik v. Burwell to file briefs examining other ways that women might access contraception if the Affordable Care Act's mandate were not applied to them (non-profit religious employers). Today, those challengers filed their briefs.

    This is clearly connected to the Religious Freedom Restoration Act, the law that Justices use to balance government (public) interests against religious liberty concerns. The RFRA says that government action can only burden someone's religious freedom if the government is acting toward a compelling public interest and acting by the least restrictive means to that end. This last part is where the government lost its case against Hobby Lobby, because Justices were not convinced that the birth-control mandate was the least restrictive way to make sure women had access to contraception (a public interest).

    Remember, Zubik is different from Hobby Lobby because challengers in Zubik have been offered an "accommodation" under the mandate. Under the accommodation, non-profit employers must file some paperwork, essentially referring their workers to a third party to provide the coverage for the offending forms of contraception. 

    Counsel for some of the challengers at Alliance Defending Freedom had this to say about the situation:

    "The Supreme Court asked if any way exists to offer contraceptive and abortifacient coverage without making Christian schools, nuns, and priests complicit in providing them. The answer we gave the court today is yes. There are many ways in which all women could receive cost-free contraceptive coverage that wouldn’t require involvement by religious non-profit groups. The government could offer separate avenues for contraception coverage that do not hijack the non-profits’ insurance plans. The Supreme Court should rule in favor of the non-profits in light of the numerous means the government has to achieve its objectives without violating anyone’s religious liberty.”

    The Court is expected to rule on this case this summer.


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    Justice Scalia's Legacy in ACA Cases


    By Hadley Heath

    Supreme Court Justice and conservative legal mastermind Antonin Scalia passed away on February 13. His legacy runs far and wide and deep, touching a host of legal issues. On the HealthCareLawsuits blog, we will flag a few ways Scalia impacted the Supreme Court cases related to the Affordable Care Act:

    In 2012, Scalia dissented with the majority (5-4) that upheld the ACA's individual mandate. He sided with six other justices to rule that the law's Medicaid expansion should be optional for states.

    In 2014, Scalia joined the majority (5-4) to rule against the government in the Hobby Lobby case on the law's contraception mandate.

    In 2015, Scalia authored the dissenting opinion in King v. Burwell, the case that upheld (5-4) the ACA's subsidies and tax credits. The Cato Institute's Michael Cannon writes about Scalia's dissent:

    While the majority dismissed or expressly refused to consider parts of the ACA that contradicted its interpretation, Scalia took the time to examine every argument and the entire statute. He methodically and efficiently debunked each argument the majority offered for ignoring what everyone knows the law says. He showed how the majority’s interpretation directly conflicts with multiple provisions of the ACA, including the operative text and the provisions the majority conveniently refused to consider. He famously, colorfully, and characteristically described the majority’s reasoning as interpretive jiggery-pokery” and “pure applesauce.” 

    This year, as the Court examines a case similar to Hobby Lobby, Scalia's vote will be sorely missed. The Little Sisters of the Poor case (which has now been combined with other similar cases) will be heard before the Court on March 23. Should the Court rule 4-4 on this case in Scalia's absence, then the lower court rulings on this issue will stand. The Little Sisters lost their case at the 10th Circuit, so a 4-4 ruling at the Supreme Court would essentially mean a loss for them. 

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    "Little Sisters" Special Guests at SOTU


    By Hadley Heath

    Sisters Loraine Marie Maguire and Constance Veit, members of the order "Little Sisters of the Poor" will attend President Obama's final State of the Union address, even as their order fights with the Obama Administration in court. The Sisters will be guests of House Speaker Paul Ryan.

    Most recently the Little Sisters, along with other petitioners suing over the so-called "birth control mandate," filed a brief with the Supreme Court, who will hear their case this year. Their case centers on an accommodation that the Administration offered to some religious groups on the mandate. Churches and houses of worship can be exempted entirely, but other religious non-profits, like the Little Sisters (a group of nuns who care for elderly and dying patients) can only be "accommodated." The Sisters and other petitioners explain that the government should not be in the business of deciding which religious groups are "religious enough" for the exemption, and that the accommodation still forces them to violate their deeply-held religious groups, as they are party to the process by which their employees could access contraceptives that they find morally objectionnable. 

    The Independent Women's Forum, the organization behind, has filed an amicus brief, siding with petitioners.  

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    Members of Congress Support Sissel Case


    By Hadley Heath

    Today 46 Members of Congress, led by Rep. Trent Franks (R-AZ), filed an Amicus Curiae brief in support of the plaintiffs in Sissel v. HHS. This case challenges the constitutionality of the Affordable Care Act, alleging that because the bill originated in the Senate and raises revenues, it violates the Origination Clause. Here is a link to their brief.

    Here's what the Congressmen had to say about their action, from their press release about the Amicus brief:

    The brief traces the historical foundation of the Origination Clause, demonstrating that the chamber closest to the people and elected every two years has the sole power to originate revenue raising bills. The Origination Clause, found in Article 1, Section 7 of the U.S. Constitution, requires that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Obamacare, which was upheld by the U.S. Supreme Court on the grounds that it was a tax (aka a "Bill for raising Revenue") instead originated in the Senate.

    Pacific Legal Foundation is handling the litigation of this case. You can read more about their efforts here.

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    SCOTUS to Hear Little Sister of the Poor Challenge


    By Hadley Heath

    The Supreme Court just announced that it will hear a new challenge to ObamaCare's mandate that all employers provide first-dollar coverage for all FDA-approved contraceptives. This case is a lot like the one brought last summer by Hobby Lobby Stores, Inc., but this time, the challengers are non-profit groups including hospitals, universities, and charities. Because of their religious affiliations and convictions, these groups do not want to be a part of providing contraceptives that they find morally objectionable.

    One of these groups is Little Sisters of the Poor, a group of Catholic nuns who care for the sick and elderly poor. These sisters have taken vows of chastity, meaning not only do they oppose birth control, but they have no need of it. IWF is proud to be supportive of their case through the amicus brief that we filed this summer. Here's an excerpt from our brief:  

     As with the Hobby Lobby case, this case is about more than contraception. It is about the principles of liberty that animate our Constitution. It is about empowering women to choose the healthcare and salary options that best fit their needs. And it is about empowering charitable employers, many lead by women, to follow their deeply held religious convictions—regardless of the form of their charitable entity. Women do not check their religious liberty rights at the office door.

    The Obama Administration has made a blanket exception to this mandate for churches, but for other religious non-profits, they offered a so-called accommodation: Instead of directly providing insurance coverage for the drugs and devices in question, the non-profit employers must sign paperwork instructing a third party to provide the coverage to their employees. 

    This is troubling not just because it burdens the religious freedom of non-profit employers, but because it puts the federal government in a place it doesn't belong, deciding who is sufficiently "religious enough" to get an exemption. We might all think that surely nuns are religious enough, but it's government making this distinction in the first place that is troubling.

    It's good news that the Court has decided to take up this case. If the Court applies the same logic as in Hobby Lobby v. Burwell, they will see that the non-profit employers are facing a substantial burden to their religious freedom, even under the "accommodation," and that there is a better way for the government to attempt to provide broad access to contraceptives.

    It is suprising that the Obama Administration has not yet realized this: They lost in Hobby Lobby, and these other cases have been working their way through district and appellate courts for years now. Did they not see this coming? Now they will have to deal with the optics of facing nuns, hospitals, universities, and other religious charities in Court. These charities do so much good in society; they simply want no part in ObamaCare's contraception mandate. But the Obama Administration would prefer to shut them down, through backbreaking fines for noncompliance, than allow them to continue providing education and healthcare services to those most in need. Mind-blowing.

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