More than a year of drama and uncertainty over whether the Supreme Court will erect new limits to women’s access to birth control is about to enter its final chapter. When that chapter begins, the Court will send a signal that could telegraph how they will ultimately decide how much power bosses have to limit their employee’s access to birth control. Though the Court is all but certain to hear at least one case involving religious objectors who wish to hinder their employee’s access to contraception, the name of the specific case that the Court chooses to hear could reveal a great deal about how the justices view this issue.
The justices are scheduled to consider whether to take up a birth control case at their October 30 conference, although they will likely delay announcing which case they will take for at least another week.
The Story So Far
To recap what has happened so far, the justices handed down their 5-4 decision in Burwell v. Hobby Lobby in June 2014. Hobby Lobby was a doctrinal earthquake. It held, in contravention of longstanding precedents, that religious objectors could wield their own religious beliefs to diminish the rights of others. It was not immediately clear, however, what impact this case would have on women’s actual ability to obtain birth control coverage.
The specific holding of Hobby Lobby was that federal regulations could not require an employer to include birth control in their employees’ health plan if the employer objects to birth control on religious grounds. Justice Samuel Alito’s opinion in Hobby Lobby, however, strongly implied that it would be acceptable for the government to ensure that most of these workers have access to birth control through an alternative means. Under this alternative, a religious objector wishing to exempt itself from its obligation to provide contraceptive coverage need only fill out a form notifying the government of its desire to do so. The form also informs the government of which company administers their insurance plan. The government then works directly with that insurer to provide a separate insurance plan that covers the affected workers’ contraceptive care.
Four days after Hobby Lobby, however, the Court granted temporary relief to a religious college that did not wish to comply with this fill-out-the-form option. Many observers viewed this as the Court’s attempt to move goalposts it had recently set in Hobby Lobby. One of these observers was Justice Sonia Sotomayor, who practically accused the justices in the majority of lying. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”
Though the federal courts of appeals are nearly unanimous in agreeing that the law does not permit religious objectors to refuse to fill out the form, one outlier court, the United States Court of Appeals for the Eighth Circuit, did side with the religious objectors. That creates what’s known as a “circuit split,” a difference in opinion between two or more federal courts of appeals. The Supreme Court typically hears cases that will resolve such a split in order to maintain the uniformity of federal law throughout the nation.
The So-Called “War On Nuns”
Several cases are competing for the justices’ attention, but two of these cases are at the front of the line. The first involves a plaintiff that by all outward appearances was hand-selected by the religious right to place the most sympathetic possible face on their efforts to shift the balance of power between religious objectors and their employees. The second involves other religious employers who, for various legal reasons, are more suitable plaintiffs to bring their case to the Supreme Court. If the justices choose to hear the first of these two cases, that will mean that they ignored a crucial defect in that case to select a plaintiff that is certain to fuel conservative religious attacks against the Obama administration. If they choose to hear a different case, then that is a much more positive sign for the women who could be impacted by a victory for religious objectors.
The first case was brought by the Little Sisters of the Poor, an order of nuns that runs a network of nursing homes. The Little Sisters have become a cause célèbre among religious objectors to birth control and their allies. Pope Francis met with a group of the Little Sisters as “a sign of support for them” during his recent visit to the United States. Republican presidential candidate Jeb Bush described the birth control cases as “a choice between the Little Sisters and Big Brother.” Following the lead of the Becket Fund for Religious Liberty, the legal group that represents the Little Sisters, conservative media have taken to referring to the Little Sisters case as Obama’s “war on nuns.”
Yet, as the solicitor general’s office explained in a brief to the Supreme Court, there’s a legal defect in the Little Sisters case that should discourage the justices from hearing it. The Court has a great deal of control over which cases it reviews, and the justices typically try to avoid cases with loose ends that could prevent them from reaching crucial legal questions. If there are doubts about the Court’s jurisdiction over a particular case, for example, or if the factual record in a case is inadequately developed, or if there is some other reason why the issues presented by a specific case aren’t as cleanly presented as they could be, then the justices are likely to pass that case over — especially if another case exists that provides a better vehicle to decide the same issue.
Little Sisters has a vehicle problem. Recall that the rules being challenged by religious objectors in these cases call for the government to negotiate directly with the objector’s insurance administrator to provide birth control coverage to the objector’s employees. The Little Sisters’ insurance administrator, however, is an “ERISA-exempt church plan,” a legal designation which means that the insurance company may also have the right to refuse to provide birth control coverage due to its own religious objections. Thus, the Little Sisters case may be a case about nothing — even if the Little Sisters lose, their employees still will not receive birth control coverage. That is a bad vehicle for the Supreme Court to use to decide what happens in cases where something real is actually at stake in the case.
For this reason, the solicitor general recommends that the Court take a different case, Roman Catholic Archbishop of Washington v. Burwell, because the archbishop’s petition “presents all of the health coverage arrangements that have given rise to [religious objector’s] challenges.” If the plaintiffs in this case lose, it is much clearer that some women who work for these plaintiffs will gain the ability to obtain birth control coverage through the process contemplated by the government. Roman Catholic Archbishop, in other words, is not a case about nothing.
Under normal circumstances, it would be very unusual for the justices to take a case that has a vehicle problem like the one presented by Little Sisters when they could just as easily take a different case that does not present this problem. But Little Sisters is not a normal case. It is the bludgeon religious conservatives have chosen to use as a political weapon against the Obama administration.
Admittedly, it only takes a four justice minority for the Court to agree to hear a case, so if the Court does take the Little Sisters case, that may be a sign that the Court’s four most conservative members want to inflict maximal political damage on the president without being a sign that they have a fifth vote to rule in the Little Sisters favor. Nevertheless, it is not a hopeful sign for women who seek access to birth control if the justices take the Little Sisters case instead of selecting Roman Catholic Archbishop as the appropriate vehicle to resolve these cases.