Appeals Court Rules Against HHS Birth Control Mandate; May Lead to Supreme Court Review

By Michael Gryboski, Mainline Church Editor Monday, September 21, 2015

A Plan B One-Step emergency contraceptive box is seen in New York, April 5, 2013. A federal judge on Friday ordered the U.S. Food and Drug Administration to make 'morning-after' emergency contraception pills available without a prescription to all girls of reproductive age. — A Plan B One-Step emergency contraceptive box is seen in New York, April 5, 2013. A federal judge on Friday ordered the U.S. Food and Drug Administration to make "morning-after" emergency contraception pills available without a prescription to all girls of reproductive age. | (Photo: Reuters/Shannon Stapleton)

An appeals court has ruled against the Department of Health and Human Services' accomodation to the birth control mandate for religious groups, arguing that it does not sufficiently protect religious liberty. The decision could mean that the case will go to the Supreme Court.

In a decision released Thursday, a three judge panel of the Eighth Circuit Court of Appeals ruled that faith-based groups should not be required to sign a waiver for being exempted from providing assorted birth control methods in their insurance coverage.

Plaintiffs in the case included CNS Corporation, CNS international Ministries, Heartland Christian College, and Ozark National Life Insurance Company.

"In light of CNS and HCC's sincerely held religious beliefs, we conclude that compelling their participation in the accommodation process by threat of severe monetary penalty is a substantial burden on their exercise of religion," ruled the panel.

Kristan Hawkins of Students for Life leads anti-abortion demonstrators as they cheer after the ruling for Hobby Lobby was announced outside the U.S. Supreme Court in Washington June 30, 2014. The U.S. Supreme Court on Monday ruled that business owners can object on religious grounds to a provision of U.S. President Barack Obama's healthcare law that requires closely held companies to provide health insurance that covers birth control. | (Photo: Reuters/Jonathan Ernst)

"We thus conclude that CNS and HCC have shown a substantial likelihood of success on the merits of their claim that the contraceptive mandate and accommodation process impose a substantial burden on their religious beliefs."

The panel went on to cite the Supreme Court decision Burwell v. Hobby Lobby, which allowed for closely-held businesses with sincerely held religious beliefs to be exempted from the mandate.

"We first reiterate that the government bears the burden of proof on this issue, which requires it to come forward with evidence that the contraceptive mandate and the accommodation process are the only feasible means to distribute cost-free contraceptives to women employed by religious organizations and that no alternative means would suffice to achieve its compelling interest," continued the decision.

"CNS and HCC urge that the government could provide subsidies, reimbursements, tax credits, or tax deductions to employees, or that the government could pay for the distribution of contraceptives at community health centers, public clinics, and hospitals with income-based support. On the minimal record thus far developed, the government has not shown that these alternatives are infeasible."

Back in 2012, the federal government announced that as part of the Affordable Care Act employers had to provide comprehensive birth control healthcare coverage for employees.

Known as the preventive services mandate or birth control mandate, the HHS rule garnered intense backlash over its lack of religious exemptions for organizations morally opposed to any or all forms of FDA-approved birth control.

In July, HHS announced the final rules for the mandate, allowing nonprofits and some for-profits to opt out of the mandate through sending notification directly to HHS or via a third party.

"Relying on a definition used in federal tax law, the final rules define a 'closely held for-profit entity' as an entity that is not publicly traded and that has an ownership structure under which more than 50 percent of the organization's ownership interest is owned by five or fewer individuals, or an entity with a substantially similar ownership structure," read an HHS statement.

"For purposes of this definition, all of the ownership interests held by members of a family are treated as being owned by a single individual. Based on available information, the Departments believe that this definition includes all of the for-profit companies that have challenged the contraceptive-coverage requirement on religious grounds."

Despite this supposed "accomodation," legal battles continue to abound across the country as various groups including the Little Sisters for the Poor attempt to receive an exemption from the final rules.

Up until the Eighth Circuit panel's decision, the Little Sisters and other plaintiffs have been losing at the appellate level. Some have filed appeals with the Supreme Court.

With the panel decision, a chance exists that the highest court in the land will take up the matter in their upcoming session, according to Lyle Denniston of ScotusBlog.

"The Obama administration now has the option of asking the full Eighth Circuit to rehear the cases en banc or to go, now or later, to the Supreme Court," wrote Denniston.

"The Supreme Court has not set a date for its initial consideration of any of the seven pending petitions. Some of them had been scheduled for the September 28 Conference, but then were postponed, presumably until all of the cases are ready."