Birth Control Is Back Before The Supreme Court. Liberals Could Win This Time.

CREDIT: AP Photo/Matt Slocum

The Supreme Court announced on Friday that it would hear more than half a dozen cases presenting the question of just how far employers can go to prevent their employees from obtaining birth control coverage. The cases, which are likely to be consolidated under the name Zubik v. Burwell, represent the Court’s second foray into this space in less than two years. The last foray, of course, was the Court’s decision in Burwell v. Hobby Lobby, which upset a longstanding balance between religious objectors and others who benefit from the laws that these objectors find objectionable.

There are early signs, however, that Zubik could end differently than Hobby Lobby. The Court in Hobby Lobby, for example, strongly implied that a regulation of the kind at issue in Zubik would be acceptable. Lower appeals courts reading the Hobby Lobby decision, moreover, are nearly unanimous in holding that the framework at issue in Zubik already gives religious objectors adequate protections — and that they are not entitled to additional protection under federal law. Most importantly, Justice Anthony Kennedy — the most likely swing vote in Zubik — wrote a concurring opinion in Hobby Lobby which suggests that he thinks the Zubik plaintiffs are asking for too much.

What’s New In The New Cases

Both Hobby Lobby and Zubik were brought by employers seeking to exempt themselves from federal rules intended to help working women obtain birth control coverage. The rules at issue in Hobby Lobby requires employer-provided health plans to include contraceptive coverage, among other things. That rule remains good law, except that, under Hobby Lobby, employers who object to birth control on religious grounds may now refuse to comply with this rule without consequence.

Hobby Lobby fundamentally altered the balance American law strikes between religious objectors to federal law and individuals who benefit from those laws. Prior to Hobby Lobby as Justice Ruth Bader Ginsburg explained in dissent, the Court recognized that “accommodations to religious beliefs or observances . . . must not significantly impinge on the interests of third parties.” Thus, an employer’s religious objection to birth control could not be wielded to take birth control away from that employer’s workers.

It is somewhat of an open question, however, just how far Hobby Lobby will permit religious objectors to take their objections to birth control — which brings us to the rules at issue in Zubik. Under those rules, employers with religious objections to birth control have an absolute right to exempt themselves from the requirement to provide contraceptive coverage to their employees. To do so, they need only notify the federal government of their desire to invoke this exemption (ordinarily by filling out a short form) and disclose the company that administers their health plan. The government then works directly with that company to provide birth control coverage plans to the employer’s workers.

Near Unanimity

This fill-out-the-form solution, as the Supreme Court noted in Hobby Lobby, “achieves all of the Government’s aims while providing greater respect for religious liberty.” Multiple federal appeals courts have examined whether the fill-out-the-form solution adequately provides for religious objectors’ rights under federal law, and all but one of them agree that it does.

This near unanimity, it should be noted, has not come about because the government has drawn unusually sympathetic judges in the lower courts. One judge who held that the fill-out-the-form regime does not raise any concerns under federal religious liberty law is Judge Jerry Smith, arguably the most conservative member of the very conservative United States Court of Appeals for the Fifth Circuit. Judge Smith once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial, and he’s described feminists as a “gaggle of outcasts, misfits and rejects.” He is the sort of judge who lives underneath the beds of liberal children, waiting to devour them if they stay up too late or do not eat their vegetables. And even he agrees that the plaintiffs in Zubik are asking for too much.

The Zubik plaintiffs rely on a law called the Religious Freedom Restoration Act (RFRA), which provides fairly robust protections to religious objectors who do not wish to comply with a federal law. RFRA, however, does not give these objectors an absolute right to violate the law. For starters, RFRA only applies if a federal law “substantially burden[s] a person’s exercise of religion,” so minor or incidental burdens to a person’s faith are not covered by this law. Additionally, RFRA permits laws that substantially burden a person’s faith if the law survives a test known as “strict scrutiny.” That is, if the law “is in furtherance of a compelling governmental interest” and it uses “the least restrictive means of furthering that compelling governmental interest.”

If Hobby Lobby did not exist, the Zubik plaintiffs would have a difficult time claiming that they face a substantial burden when all they are required to do is fill out a short form. Justice Samuel Alito’s opinion for the Court in Hobby Lobby, however, largely wrote the substantial burden requirement out of RFRA. The Hobby Lobby plaintiffs, Alito wrote, “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.” So, after Hobby Lobby, the mere fact that the Zubik plaintiffs say they face a substantial burden is probably enough to establish that the claim is true in the eyes of the Supreme Court.

Nevertheless, the government’s case in Zubik is not hopeless — indeed, it is quite far from hopeless.

Enter Justice Kennedy

Probably the best sign for the Obama administration — and for women who don’t want their bosses to decide for them whether or not they can have birth control coverage — is a concurring opinion Justice Kennedy wrote in the Hobby Lobby case. Though Kennedy joined Alito’s opinion in full, his concurring opinion appears to anticipate Zubik and suggest that he is open to the government’s arguments in this later case.

Alito’s Hobby Lobby opinion rested largely on the requirement that the government must use “the least restrictive means of furthering” a compelling government interest once a court has determined that RFRA applies. Because the fill-out-the-form option imposes less of a burden on religious objectors than requiring them to offer birth control coverage directly, Alito reasoned, the regulations at issue in Hobby Lobby could not be the “least restrictive means” of providing working women with birth control.

Kennedy agreed with that conclusion, but he also strongly suggested in his concurring opinion that RFRA does not permit employers to refuse to comply with their limited obligations under the fill-out-the-form option. Referring to this very option, Kennedy wrote that “the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage.” Thus, Hobby Lobby was “not a case where it can be established that it is difficult to accommodate the government’s interest,” because “the mechanism for doing so” — the fill-out-the-form option — “is already in place.”

Justice Kennedy also expressed sympathy for the view that religious objectors should not be able to cut too deeply into the rights of third parties. Religious exercise, he wrote, may not “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.” While he believed that the fill-out-the-form option offered a better way to balance objectors’ interests with those of women seeking birth control than the rules at issue in Hobby Lobby, he concluded that Hobby Lobby might be distinguished from another case “in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.”

Zubik, of course, is that case.

To be clear, nothing in Kennedy’s Hobby Lobby concurrence is a guarantee that he will rule against the religious objectors in these cases. That concurrence is an indication, however, that he was bothered by a case like Zubik and that he recognizes that an objector’s efforts to immunize themselves from the law can go too far. So the government, and women who need birth control, have a very real chance of picking up Kennedy’s vote in Zubik — and that would be enough for them to prevail.