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Contraception challenge prepares to come home

Missouri has the distinction of being home to the only federal appeals court in the country to rule against the U.S. government in a still-raging dispute over contraception.

As litigation prepares to start again, will that be a distinction without a difference?

Following arguments in March, the U.S. Supreme Court had seemed poised to rule in Zubik v. Burwell, a group of cases involving the official process by which religiously affiliated non-profit companies could seek an exemption from the Affordable Care Act’s contraception insurance coverage mandate. The 8th U.S. Circuit Court of Appeals was not among the four appellate circuits whose cases were under official consideration, but it loomed large in the background. Last September, in a case from Missouri and a companion case from Iowa, the 8th Circuit had created a circuit split by ruling in favor of the religious non-profits who alleged the accommodation process was needlessly burdensome.

Contraceptive Pills.

Officially, that split is no more. In a series of unsigned orders, the Supreme Court on May 16 refused to rule on the merits of any of the cases. Instead, the court vacated and remanded all the appellate rulings — including those in the 8th Circuit — and told them to give the parties “an opportunity to arrive at an approach going forward” that would preserve the non-profits’ religious rights while ensuring that women who work for them will continue to get contraceptive care.

Missouri lawyer sees positive ending

It’s not yet clear what that process will look like or how long it will take. But Timothy Belz of Ottsen, Leggat & Belz in St. Louis, an attorney for the Missouri companies whose objections to the contraceptive mandate actually managed to stick, says a favorable end to the litigation appears to be not far off.

“I have no reason to think the 8th Circuit is going to back away from what it did before,” Belz said. “By [the Supreme Court’s] asking everyone to come up with the least restrictive alternative, I think the 8th Circuit’s position is vindicated.”

Belz’s case is one of many across the country stemming from the unceasing fight over the Affordable Care Act. Employers with 50 employees or more were required to carry health insurance plans offering free contraceptive care. Religious organizations such as churches are directly exempted, while federal regulations allowed non-profits that identify themselves as religiously affiliated to seek an accommodation by sending a form to their insurance provider, which still is required to provide contraceptive care. Companies that didn’t seek the accommodation, however, could be fined $100 a day per affected individual.

The government argued that the form was not a burden on the organizations’ religious rights, as it freed them from have to pay for or arrange for contraception for their employees. The organizations objected, however, arguing that filling out the form triggered their insurance policies to provide contraceptive coverage, making them complicit in a practice they found objectionable. (Some objected to all contraception, while others complained that types of contraceptives that prevent the implantation of a fertilized egg are tantamount to abortion.)

The 2nd, 3rd, 5th, 6th, 7th 10th, 11th and D.C. circuits all sided with the government’s argument. But on Sept. 17, the 8th Circuit took a different route in a case involving CNS International Ministries Inc. and Heartland Christian College, two related religious non-profits located in rural northeastern Missouri.

Judges Roger L. Wollman, Steven M. Colloton and Duane Benton ruled that the accommodation process violated the Religious Freedom Restoration Act by imposing a substantial burden on the non-profits’ exercise of religion. Although other courts had found the process wasn’t overly burdensome, the 8th Circuit said it was for the religious organization, not the court, to decide where to draw the line. It was enough, the court said, that the religious groups sincerely believed the accommodation process “would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty.”

“If one equates the self-certification process with, say, that of obtaining a parade permit, then indeed the burden might well be considered light,” Judge Wollman wrote. “But if one sincerely believes that completing [the form] will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear.”

The court ruled the same day in favor of two Iowa religious colleges, Dordt College and Cornerstone University.

No coincidence

Six weeks later, the Supreme Court granted writs of certiorari in seven cases stemming from four appeals courts. Belz doesn’t think that timing was a coincidence.

“Without our case, I think it’s very conceivable that the Supreme Court could have just let the other cases ride,” he said. (The 8th Circuit cases themselves weren’t granted cert until May 16, and were immediately vacated and remanded.)

Ultimately, the Supreme Court, which has operated with just eight members since the death of Justice Antonin Scalia in February, offered little guidance. Shortly after oral arguments, the court asked the parties to submit additional briefs exploring if there were ways for the objectors’ employees to receive contraceptive coverage without the religious employers’ having to do much of anything. Under the Religious Freedom Restoration Act, it’s permissible for the government to burden religious rights so long as it employs the least restrictive means to accomplish a compelling interest.

The 8th Circuit’s ruling had focused on the potential restrictiveness of the accommodation process. Rather than have to fill out the relatively detailed form and file it with their insurance providers, it appeared possible that religious organizations could simply inform the Department of Health and Human Services of its objections and let the government take it from there.

In fact, the court said, it appeared the Supreme Court itself had supported such measures in the past. In 2014, for instance, the court had issued an order in a challenge by an Illinois religious institution, Wheaton College, saying written notice to the government would be sufficient.

The 8th Circuit said that order and others like it “at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests.” Although the appeals court appeared to be citing the Supreme Court’s orders more as evidence than as precedent, the citation drew a sharp rebuke from Justices Sonia Sotomayor and Ruth Bader Ginsburg in a concurring opinion to the May 16 order. They said the 8th Circuit had “ignored” the high court’s command not to construe the Wheaton College order as a ruling on the merits.

“On remand in these cases, the Courts of Appeals should not make the same mistake,” Sotomayor wrote. Elsewhere in the opinion, she added that the appeals courts “remain free to reach the same conclusion or a different one on each of the questions presented by these cases.”

With directions like that, it’s hard for anyone to know exactly what the lower courts are supposed to do at this point.

“When you get an order like this that’s so assiduously careful not to take any sides, then it enables every side to declare victory,” said Ann Marie Marciarille, a law professor at the University of Missouri-Kansas City who concentrates on health care law.

She said whatever the courts do with the cases now, it will not be “instantaneous.”

“Whether or not any of the circuit courts will change their position is anybody’s guess,” she said.

Patrick G. Nemeroff, an attorney with the U.S. Department of Justice’s Civil Division, wrote in a May 23 letter to the 8th Circuit that, under Supreme Court rules, the order wouldn’t become final until at least 25 days after the May 16 order.

“We are studying the Zubik opinion and the remand orders and will file a status report within 30 days,” he wrote.

The cases are Sharpe Holdings Inc. v. Burwell, 14-1507, and Dordt College v. Burwell, 14-2726.

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