High court will hear nonprofit Obamacare cases

Today the U.S. Supreme Court surprised nonprofits challenging the contraceptive and abortifacient mandate by granting all seven of their petitions a hearing.

The court will consolidate the seven cases into one argument, considering whether the mandate is an intolerable burden on nonprofits as it was for the for-profit companies in Burwell v. Hobby Lobby. This is a remarkable turn of events, after nonprofits had a losing streak at the circuit level and fretted about getting their cases before the high court.

Churches are fully exempt from the mandate, but the federal government has a special regulation for nonprofits who object to the mandate on religious grounds. The regulation attempts to provide the objectionable drugs through indirect funding mechanisms: The nonprofit signs a form for the Department of Health and Human Services (HHS), stating its objection and naming its insurance provider. Then HHS arranges coverage of the objectionable drugs for the nonprofits’ employees through the insurer or a third party.

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

The seven cases before the high court include plaintiffs such as the Little Sisters of the Poor, a group of Catholic nuns who care for the elderly; Catholic dioceses; Priests for Life; Guidestone Financial Resources; and several religious colleges like Houston Baptist University, Geneva College, and the Catholic University of America.

The nonprofits lost case after case at the circuit level until September, when the 8th U.S. Circuit Court of Appeals issued the first circuit-level ruling in their favor. That created a split among the circuit courts, so court watchers expected the Supreme Court justices to agree to hear at least one of the cases.

After the 8th Circuit’s ruling, the federal government reversed course and asked the justices to take the case from the Archbishop of Washington. The reversal was a recognition that the court likely would take one of the cases, so the solicitor general picked which one he wanted the court to take.

The court will hear the case in late March. Now one big question is who will argue for the nonprofits. They have a stable of good choices 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. But the clients choose who will represent them in court.

A number of religious organizations have already filed amicus briefs on the side of the groups appealing to the high court: Christian Legal Society, Southern Baptist Theological Seminary, The Council for Christian Colleges & Universities, and a group of Orthodox Jewish rabbis, among others.

The cases all have different features, which may explain why the court granted all of them. Some groups have more or less sympathetic facts surrounding their cases, some have different types of health plans, and some argue their cases on different legal grounds. The court will consider only whether the mandate violates the Religious Freedom Restoration Act (RFRA), not the broader constitutional question.

The mandate is familiar ground for the court, even though the justices didn’t consider the federal regulations governing nonprofits in the Hobby Lobby case. The court hasn’t given strong indications how it might rule on this question. Justice Samuel Alito made reference to the (then-unfinished) nonprofit regulations when he wrote the Hobby Lobby ruling, but only as an example of how the government could be less restrictive. That was not an endorsement of the accommodation, as the court emphasized in its ruling. Since then, the court has given signals, like granting rare emergency injunctions to Little Sisters and Wheaton College, but the justices haven’t shown their cards.