Suspense at the Supreme Court often turns on whether the Justices will agree to hear a case and tackle a particular issue. But on rare occasions, the focus is on which case the Justices will hear, rather than whether they will hear one at all.

The fate of health insurance coverage for contraception in the Affordable Care Act is a case in point. The question is not whether the Court will tackle the issue but when and in which case.

The Court is currently facing seven petitions for certiorari from four separate decisions by four different circuits, each of which rejected challenges to the Obama administration’s plan to accommodate objections to the birth control mandate. However, the Eighth Circuit recently weighed in to invalidate the plan to accommodate those objections, creating the kind of clear conflict among the federal appeals courts for which the Justices look in deciding whether to take up a legal question.

The process by which the Supreme Court will decide which case to hear offers a glimpse into both how the Justices shape their docket and what influences weigh on the choices they make to fill the roughly seventy highly competitive and coveted slots each Term for oral argument and decision.

The dispute will mark the fourth appearance in the Supreme Court of the Affordable Care Act, the sweeping health insurance reform passed by Congress in 2010. Congress mandated that insurance do a better job of covering preventive care at no or low cost. Federal agencies, led by the Department of Health and Human Services (HHS), then implemented regulations requiring insurance for preventive care to include coverage for doctor-approved contraception for women. Employer-sponsored health insurance plans had to include coverage for certain forms of birth control for workers and their families.

What about employers who provide health insurance but object on religious grounds to providing their female employees with access to birth control? The regulations directly exempted churches from the mandate, and they created alternative options for other nonprofit organizations with religious ties or affiliations that object to contraception on religious grounds.

Those alternative options are the focus of this round of lawsuits and Supreme Court petitions. The regulatory scheme and legal arguments require some explanation before we return to the process by which the Justices will decide which case to review.

The regulations allowed religious non-profits to opt out of providing contraceptive coverage for their employees. When a group opts out, coverage for birth control for its female employees is provided directly by the insurer rather than through the employer’s policy; for groups that self-insure, the coverage is handled by a third party. The federal government says that, in these circumstances, religious non-profits are not required to pay for the contraceptive coverage or even to tell their employees that the coverage is available through other means. After the Court’s 2014 ruling in favor of Hobby Lobby Stores, the federal government also made these opt-out options available to privately held corporations with religious objections to some or all contraception.

To opt out, organizations may notify their insurers or sign and submit a form created by the Department of Labor. In July 2014, just days after the Hobby Lobby ruling, the Supreme Court ordered the Department of Health and Human Services to accept a letter from Wheaton College in Illinois, a Christian liberal arts school, as sufficient notice that the college was opting out of the birth control mandate. As a result, religious organizations now can opt out of the birth-control coverage by either submitting the federal form or sending a letter to federal officials.

A broad range of religious non-profits, from religious organizations that provide social services and charitable work to private colleges and universities with religious affiliations, have challenged this opt-out system. Their argument is essentially that, although they are opposed to contraception for religious reasons, they must nonetheless take some step — notifying either their insurer or federal authorities — that has the effect of triggering birth control coverage for their employees through alternate means. This, they argue, puts them in the position of facilitating contraception in violation of their group’s religious beliefs.

The lawsuits primarily invoke the Religious Freedom Restoration Act (RFRA) rather than the guarantee of free exercise of religion in the First Amendment. The Supreme Court has largely foreclosed the First Amendment argument by ruling in the past that laws which are generally applicable, treat everyone the same, and do not single out religion do not require any special exception for the free exercise guarantee. Because the birth control mandate applies to most employers and health insurance plans and does not single out religious groups, any claim of religious discrimination would have an uphill battle.

However, Congress passed the Religious Freedom Restoration Act in 1993 to discourage laws that impose a “substantial burden” on religious exercise and to allow such burdens only in the very rare circumstances in which a legislature has the strongest possible justification and the law is as narrow as possible. The religious nonprofits generally argue that the opt-out provisions for the contraceptive mandate impose an improper substantial burden on their religious freedom in violation of RFRA.

Among the federal appeals courts, then, four have generally found that the opt-out provisions do not impose a substantial burden, but the most recent ruling by the Eighth Circuit found that the opt-out provisions do impose a substantial burden: the threat of fines against nonprofits that refuse to comply with the mandate. The Eighth Circuit also found that the law was not sufficiently narrow to justify the burden on religious non-profits.

This brings us back to the Supreme Court. The Justices are currently scheduled to consider what to do with the seven petitions for certiorari at their closed-door Conference next Friday, October 30, although this could slip if they need more time to consider the plethora of cases.

What will determine how the Court proceeds? Several factors will be critical: the existence of the split among the courts of appeals; the views of the Solicitor General expressing the federal government’s position; and concerns about whether the legal issue or factual record is cleaner and more straightforward in any one case.

The split in the circuits is likely the most significant factor in getting the Court to take on the issue at all. The general view is that the meaning and application of federal law should be uniform throughout the United States. Resolving disagreements among federal appeals courts over the proper interpretation of a federal statute thus is a top priority for the Supreme Court.

The second and third considerations are also important and in this case may be closely related. U.S. Solicitor General Donald Verrilli has agreed with the non-profits that the Justices should settle the split among the circuits, which means that no one is urging the Court to decline to decide the birth control mandate issue. It is also significant because, since the Solicitor General speaks for the federal government in the Supreme Court, the Justices pay some degree of deference to his view on when a dispute over the meaning of a federal statute needs to be decided.

In this instance, the Solicitor General has not only urged the Court to take up the issue but has also singled out one of the seven petitions, an appeal of a ruling last November by the D.C. Circuit, as the best “vehicle” for resolving the division among the appeals courts. The term “vehicle” refers to a case selected by the Court to resolve an issue, literally a means of getting to a legal end result. Within the Court, the Justices look for cases that do not have procedural or jurisdictional hurdles or other problems that would prevent them from deciding important issues.

Verrilli argues that some of the petitions from other circuits include not just the RFRA issue but also raise First Amendment claims on which there is neither a split among the circuits nor a need for the Court to weigh in. He also argues that the D.C. Circuit’s opinion addresses more thoroughly than some other rulings not only whether there is a substantial burden but also whether the birth control mandate is the narrowest way of achieving the goal. This will provide the Supreme Court with a more fully developed set of legal arguments, the Solicitor General argues.

The petition on which Verrilli urges the Court to focus is filed by the Roman Catholic Archbishop of Washington, representing both itself as an employer and also the numerous Catholic schools that it runs.

The decision on how to proceed is, of course, up to the Justices, with only four votes required to agree to hear a case. That choice is likely in the near future, with oral argument to follow early in 2016 and a decision expected in June.

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Sorting out the birth control mandate, SCOTUSblog (Oct. 23, 2015, 11:17 AM), https://www.scotusblog.com/2015/10/scotus-for-law-students-sorting-out-the-birth-control-mandate/