John Bursch co-chairs the Appellate & Supreme Court Practice at Warner Norcross & Judd LLP. John has argued nine U.S. Supreme Court cases since 2011 and was recently inducted as a Fellow of the American Academy of Appellate Lawyers.

Non-profit religious institutions have played a critical role in the history of our nation’s development, providing health care, education, and social-welfare services to countless millions of Americans. It is not clear why the federal government would choose to target these institutions and require them to be complicit in the provision of abortifacients and other contraceptives against their religious beliefs. (Then again, much of the government’s implementation of the Affordable Care Act appears to defy common sense.) Regardless, this will not be a difficult case for the Court to resolve. And the most important aspect of the ruling will not be the Court’s decision to stop the federal government from forcing nuns to be complicit in providing abortifacients to employees: it will be the Court’s directive to lower courts to stop second-guessing the sincerely held religious beliefs of non-profit religious institutions.

The Affordable Care Act mandates that any “group health plan” must “provide coverage” for “preventive care” for women without “any cost sharing.” The Department of Health and Human Services (HHS) by regulation defined “preventive care” to include all Food and Drug Administration approved contraceptive methods and sterilization procedures, including abortifacients. An entity that fails to provide coverage for all these contraceptive methods and procedures is subject to crippling fines.

The federal government has exempted millions of entities from this mandate. By statute, employer plans that existed before March 30, 2010, are “grandfathered” and need not provide contraceptives at all, and there is no legal requirement that the federal government ever phase out these plans. Also by statute, employers with fewer than fifty employees need not offer insurance at all. And HHS itself has created a regulatory exemption for certain “religious employers.” This exemption applies to churches and “integrated auxiliaries” but does not extend to other non-profit religious organizations such as religious colleges and universities, seminaries, or orders of nuns, like the Little Sisters of the Poor. HHS makes the remarkable assumption that a church organization is “more likely” than an order of Catholic nuns “to employ people of the same faith who share the same objection.”

For the Little Sisters of the Poor and other religious non-profits, HHS designed an “accommodation” which does not exempt the organization from the mandate but simply shifts responsibility for its implementation. Provided the organization is willing to submit a form to the government expressing its religious objection, the government will force the organization’s insurer or third-party administrator to deliver the contraceptives. Indeed, as the form itself states, upon execution and delivery, it becomes “an instrument under which the plan is operated.”

So what’s the big deal about signing a form? None, according to the majority of federal courts of appeals that have decided the question. These courts have assessed the moral implication of the issue for themselves and decided that submitting a form does not actually require religious non-profits to facilitate access to contraceptive coverage. The problem is that the affected religious non-profits have reached the exact opposite conclusion, and it is not the role of the federal courts to second-guess the religious organizations’ analysis.

Consider an analogous precedent for these organizations’ belief. In the 1990s, Germany allowed health-related abortions within the first twelve weeks of pregnancy, but only if the mother received state-mandated counseling. Representatives of German Catholic churches agreed to act as counselors, presumably counseling mothers to respect the lives of their unborn children. This practice resulted in the church issuing a certificate stating that the counseling had taken place. If the mother nonetheless decided to abort her child, she had to present the certificate to her doctor as a prerequisite to obtaining the abortion. Divided about whether these circumstances amounted to cooperating with evil, the German bishops asked the Vatican about the situation. Pope John Paul II concluded that “the certification issued by the churches was a necessary condition for abortion without punishment and, as a result, the practice had to cease.” In other words, by providing the paperwork that was the necessary prerequisite for an abortion, the churches were complicit in the sin. The situation is no different here.

These religious non-profits also object to hiring, or maintaining a contractual relationship with, an insurance company or TPA authorized to provide contraceptive coverage to their plan beneficiaries. The organizations correctly believe that maintaining such a relationship makes them complicit in the provision of contraceptive coverage and creates “scandal,” because they would be responsible for the connection between the coverage providers and the recipients, and they would be sustaining the infrastructure (whether paying for it or not) by which the coverage is delivered. In this sense, the plaintiffs are akin to Muslims or Mormons who refuse to hire a caterer that will serve complimentary alcohol to their guests at a social function. It makes no difference whether the plaintiffs must pay the cost; what matters is that they exercise their religion by hiring a company that will not provide the offending products.

Only eighteen months ago, the Supreme Court in Burwell v. Hobby Lobby struck down the HHS mandate as applied to for-profit, closely held corporations. In so holding, the Court confirmed that the federal government substantially burdens the exercise of religion under the Religious Freedom Restoration Act when it demands that an entity engage in conduct that seriously violates the entity’s religious beliefs or suffer substantial economic consequences. If one accepts the moral beliefs of the religious non-profits here, Hobby Lobby requires a ruling for the religious non-profits.

As noted above, a majority of other circuits has gone the other way by second-guessing these organizations’ moral beliefs. But that conduct, too, is expressly foreclosed by Hobby Lobby, which said that the federal courts may not arrogate unto themselves the authority to answer the “religious and philosophical question” of the “circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” In other words, once the Little Sisters of the Poor have decided as a matter of moral judgment that facilitating the delivery of abortifacients by signing the HHS form is to be complicit in the sin, Article III judges lack the constitutional authority to second-guess that moral judgment and reach a different conclusion.

The HHS mandate as applied to religious non-profits fails for an additional reason: it is offensive to religions when the Department of Health and Human Services defines “religious employer” essentially as including only houses of worship. This may be consistent with how the department views “religion,” but wholly aside from the problems inherent with the accommodation, it likely violates RFRA for the federal government to define “religious employer” in such a way as to include certain religious organizations and exclude others.

Consider an easy example: seminaries. Seminaries that are affiliated with a church or association of churches are exempt entirely from the contraceptive mandate because they are exempt from the internal-support requirement. Seminaries that are not affiliated with a church or association of churches are not exempt even though they provide exactly the same service (training ministers) and even if they hire only co-religionists as employees. If, for theological reasons, a seminary is established independent from any church, synagogue, or denomination, that seminary is not exempt. But if the seminary is affiliated with a denomination, it is exempt from the contraceptive mandate, and the government concedes that would not frustrate its interests. Civil rights should not vary based upon whether that institution is or is not affiliated with a church or other house of worship. Yet that is the bizarre position the federal government takes in this litigation.

In other words, as the Tenth Circuit put it, the government’s distinction discriminates among “types of institutions on the basis of the nature of the religious practice [that the government perceives] these institutions are engaged in.” Such distinctions at the least are constitutionally suspect. The government’s definition of religious employer favors religions, religious denominations, and religious organizations that fit neatly into the government’s view of what constitutes religious activity, while simultaneously disadvantaging groups that exercise their faith through other means, organized in ways that do not fit tidily within the government’s box.

In sum, while the Supreme Court’s vote in this case may be close (likely five to four), it should not be a difficult decision. The federal courts may not second-guess the moral judgments of religious organizations, and the Court has already so held. Moreover, it is not the province of the federal government to decide which non-profit organizations fit the government’s definition of “religion” for purposes of a religious accommodation. Either way, the HHS mandate is unconstitutional as applied to non-profit religious organizations, and the Court will so hold.

Recommended Citation: John Bursch, Symposium: Contraceptive mandate cases – why the Supreme Court will instruct lower federal courts to stop second-guessing religious beliefs, SCOTUSblog (Dec. 14, 2015, 5:45 PM), https://www.scotusblog.com/2015/12/symposium-contraceptive-mandate-cases-why-the-supreme-court-will-instruct-lower-federal-courts-to-stop-second-guessing-religious-beliefs/