Enhancing the likelihood that the Supreme Court will soon take up the legality of the Affordable Care Act’s birth control mandate, a federal appeals court on Thursday differed with six others and temporarily barred the government from enforcing the mandate. That outcome came in two decisions by the U.S. Court of Appeals for the Eighth Circuit.

These cases, and seven others already pending at the Supreme Court, are sequels to the Supreme Court’s ruling last year in Burwell v. Hobby Lobby Stores. That case involved a for-profit business, but this new round of cases involves charities and non-profit operators of businesses, colleges, and schools. All have religious objections to some of the contraceptives mandated by the ACA.

When the Obama administration filed its first response in the Supreme Court to the new group of non-profit cases, in mid-August, it relied upon the unanimous views of appeals courts up to then as an argument against Supreme Court review. That situation has now changed.

The Eighth Circuit became the first appeals court to accept the non-profits’ argument that it would violate their religious beliefs if they had a role in the process of making birth-control pills and devices available, free of charge, to their employees or students.

Merely notifying the government of their objection through a government document or a formal letter to the government, they contended and the Eighth Circuit agreed, would trigger the coverage in their health insurance plans. Because they oppose abortion, and consider some of the mandated coverage to be the same as “abortion on demand,” they believe it would violate their faith to trigger the coverage.

Other courts have ruled that it is the ACA mandate that requires the coverage, not anything that the entities themselves would do, so the non-profits would not be facilitating the coverage to which they object and their faiths would not be burdened significantly.

Thursday’s decision, like most of the other appeals court rulings on the issue, involved only an interpretation of the federal Religious Freedom Restoration Act, not the Constitution. The Hobby Lobby decision, too, was based on the RFRA. The Court ruled in Hobby Lobby that for-profit firms owned by a small group of religiously devout owners could not be required to provide the coverage to their employees.

Under the ACA, as interpreted in several rulings by the Obama administration (partly encouraged by prior temporary orders of the Supreme Court), non-profit organizations run by religiously devout groups or individuals have two ways to avoid providing access to birth control.

They can claim an exemption either by filing a government form that is then sent to their insurers providing the actual coverage to initiate access, or they can file a letter giving the federal government enough information about their insurers to allow the government to then arrange the coverage.

Although the government has argued repeatedly that those two methods take the entities themselves out of the equation, the Eighth Circuit disagreed. The government must take the entities’ word that these alternatives do violate their faith, it said. And, it added, it is then up to the government to find an alternate way to provide the birth control methods to those entities’ workers and students.

The Eighth Circuit said that one alternative that the government could use would be to have the entities file a simple notice of their objection to the coverage. Such a notice, the panel ruled, would be “less onerous” than the alternatives the government has devised, and the entities would not be providing any information about their insurers to aid the government in starting coverage, the panel said.

Requiring the government to initiate a search to learn which insurer provides coverage for a given entity would not be a significant burden on the government and would not involve the entities in the process. The Eighth Circuit did not dispute that the government has an interest in providing women with access to free birth control, but it said that the religious freedom law requires the government to do so by the “least restrictive means” necessary to protect the entities’ religious views.

Among other alternatives the Eighth Circuit listed were having the government provide the birth controls itself, making the birth control available through the ACA insurance marketplaces (“exchanges”) or through health centers, clinics, and hospitals, or using some combination of subsidies, reimbursements, tax credits, or tax deductions to employees or students so they would have no cost in obtaining the pills or devices.

The main ruling by the Eighth Circuit on Thursday came in a case involving CNS Corporation, a non-profit financial services firm based in Kansas City, and its affiliated companies, and Heartland Christian College, with a campus near Newark, Mo.

The panel then applied the reasoning of that opinion to a second case, involving Dordt College in Sioux Center, Iowa, and Cornerstone University, which is based in Michigan. It is not clear what connection the Michigan college had to Iowa, where that case was pursued, although the University of Northern Iowa in Cedar Falls uses some of the curriculum developed by Cornerstone University. (UPDATE: Cornerstone University was planning to file its own challenge, with the same lawyer who was representing Dordt College, so decided to join in that lawsuit rather than suing on its own in Michigan, scotusblog has learned.)

Federal trial judges in both cases had temporarily blocked the ACA mandate for those entities, and the Eighth Circuit upheld those orders, with the enforcement bar to remain in effect while the cases move ahead on the legal merits of the challenges.

Both opinions were written by Circuit Judge Roger L. Wollman and were joined in full by Circuit Judges Steven M. Colloton and Duane Benton.

The Obama administration now has the option of asking the full Eighth Circuit to rehear the cases en banc or to go, now or later, to the Supreme Court.

The Supreme Court has not set a date for its initial consideration of any of the seven pending petitions. Some of them had been scheduled for the September 28 Conference, but then were postponed, presumably until all of the cases are ready.

Recommended Citation: Lyle Denniston, Appeals courts now split on birth control mandate, SCOTUSblog (Sep. 17, 2015, 8:13 PM), https://www.scotusblog.com/2015/09/appeals-courts-now-split-on-birth-control-mandate/