Supreme challenge

Almost every kind of nonprofit that objects to the federal contraceptive and abortifacient mandate on religious grounds will have its day in court this March. The Supreme Court on Nov. 6 granted all seven pending petitions challenging the mandate, covering organizations helping the poor, advocacy groups, religious colleges, and religious health insurers.

This is a remarkable turn of events after nonprofits had a losing streak at the circuit court level and fretted about getting their cases before the high court. The court will consolidate the seven cases into one argument, considering whether the mandate as applied to nonprofits violates the Religious Freedom Restoration Act. The justices considered a similar question as applied to closely held for-profit corporations in Burwell v. Hobby Lobby last year, ruling in favor of the Christian business owners.

It’s not clear how the justices might rule on this question, since the government attempted an accommodation for nonprofits, however shabby that accommodation is. The justices have given some faint signals in the nonprofits’ favor, like issuing rare emergency injunctions for groups like Little Sisters of the Poor. As he was in Hobby Lobby, Justice Anthony Kennedy is again the likely deciding vote. Typically Kennedy has sided with the conservative justices on religious liberty questions, but his position on this particular question is unclear.

Churches are fully exempt from the mandate, but nonprofits that object on religious grounds fall under a federal “accommodation.” That regulation attempts to provide the objectionable drugs through indirect funding mechanisms: The nonprofit signs a form stating its objection and naming its insurance provider and sends the form to the Department of Health and Human Services (HHS). Then HHS arranges coverage of the drugs for the nonprofit’s employees through the insurer or a third party (if the nonprofit is self-insured, for example).

These nonprofit regulations, revised many times during the three years after the mandate was announced, are long and complex. But for nonprofits, the regulations boil down to one thing: The government is requiring their signatures and their health plans to provide drugs the groups oppose on religious grounds.

Dozens of nonprofits have filed cases against the federal government over the mandate. They had a winning record at the district court level, but lost case after case at the circuit court level. Then in September, the 8th U.S. Circuit Court of Appeals ruled in favor of a group of nonprofits. That created a split in the appeals courts, requiring a Supreme Court resolution. The 8th Circuit cases are not among the seven the Supreme Court granted; the federal government has until Dec. 16 to appeal its loss there.

The plaintiffs in the case before the court include the Little Sisters of the Poor, a group of Catholic nuns who care for the elderly; several Catholic dioceses; Priests for Life; GuideStone Financial Resources, the Southern Baptist Convention’s insurer; Westminster Theological Seminary, based in Pennsylvania; and several religious colleges like Houston Baptist University, Geneva College, and The Catholic University of America.

One big question is which attorneys nonprofits will pick to argue their case at the Supreme Court in March. They have a stable of good candidates from the legal groups representing them: Jones Day, Alliance Defending Freedom, and The Becket Fund for Religious Liberty. One superstar litigator, Paul Clement, signed onto the Little Sisters of the Poor petition: Clement successfully argued the Hobby Lobby case.