Justices eye round two in fight over ObamaCare mandate

The Supreme Court is expected to announce as soon as Friday whether it will take up another challenge to ObamaCare’s birth control mandate  — a case that could deliver a second major blow to the health law’s contentious provision in two years.

Court watchers believe the justices will take up one or more petitions from religious organizations challenging the contraception mandate, which was amended this summer to give women access to low-cost birth control even if their employer objects on religious grounds.

{mosads}Up for review at their conference on Friday is a challenge brought on by a group of Catholic nuns, known as Little Sisters of the Poor, who have come to symbolize the staunch opposition to the long-controversial rule.

A new battle over birth control access would be a sequel to last year’s landmark Hobby Lobby case, which ruled that certain for-profit companies could opt out of the mandate.

The American Civil Liberties Union (ACLU), which has filed amicus briefs in the case, argues that this term’s ruling could have broad implications — potentially further chipping away at the mandate as it applies to for-profit companies, while altogether exempting religious nonprofits.

“I think the full kit and caboodle of the mandate is at stake,” Brigitte Amiri, a senior staff attorney for the ACLU, said Wednesday.

Legal experts and women’s health groups acknowledge that a ruling in favor of a religious group would be a political loss for the Obama administration, but they argue it wouldn’t be detrimental to the president’s signature healthcare law.

“Politically it looks bad,” said Abigail Moncrieff, an associate professor at Boston University School of Law, who specialized in healthcare law. “Anytime the administration loses it looks bad.”

But, she said, it is “a fairly small piece relative to the overall statutory structure.”

Officials at Planned Parenthood, which has strongly supported the ObamaCare mandate, say they hope the court will take the case to clear up the confusion from a split lower circuit court. But the group says it is less concerned about the implications and dismissed the root of the challenge.

“These claims are baseless and ultimately about paperwork — not religious freedom,” Dawn Laguens, executive vice president of Planned Parenthood, wrote in a statement to The Hill.

“Religious organizations, who are already exempt from the birth control provision of the [Affordable Care Act], are arguing over whether or not they want to complete their basic paperwork.”

The birth control coverage requirement has drawn intense legal scrutiny, from both religious charities and colleges such as Notre Dame and Wheaton, since the early days of ObamaCare.

The Obama administration tweaked its mandate this summer after the Hobby Lobby case, expanding the definition of which businesses can seek exemptions from the controversial ObamaCare mandate.

But the administration’s attempt to appease religious groups fell flat, and multiple groups, including Little Sisters of the Poor, filed suit arguing that the new rules were still a burden on their rights guaranteed under the Religious Freedom Restoration Act (RFRA) and the First Amendment.

Under the government’s workaround, groups such as the Little Sisters of the Poor would notify their insurance plans of their religious objections, shifting the obligation to offer contraceptive coverage from the nuns to the managers of the plan. But the Little Sisters contend they would still be facilitating a practice they oppose.

“They are basically saying that if we play any role at all in our employees getting birth control we are committing a sin,” said Timothy Jost, an emeritus professor at Washington and Lee University School of Law.

That argument was rejected in July by the Tenth Circuit Court of Appeals, in which a three-judge panel decided that the Obama administration had offered a sufficient accommodation for religious groups to opt out of the mandate.

While Jost said the court is likely to take a case challenging the rule this term, it’s unclear if it will be the Little Sisters case. The Eighth Circuit court of appeals became the first court to rule against the administration in September, signaling a lower court split, which often triggers Supreme Court review of a case.

The Department of Justice, meanwhile, is pushing for the court to take a case from the D.C. Circuit. The agency filed a brief in September recommending the court take up a case known as Roman Catholic Archbishop of Washington v. Burwell instead, calling it the “best available vehicle to consider a RFRA challenge to the accommodation.”

Either way, legal experts are expecting to see a divided court on the issue. But even if the administration loses, Moncrieff said the Department of Health and Human Services (HHS) could potentially rewrite the rule to allow employees who are denied free birth control the ability to petition HHS for an accommodation. The religious groups, she said, are only objecting to being complicit in giving birth control.

“These kinds of things are always flexible enough that it’s possible for the administration to rewrite the rule, but it depends on the willingness of the administration to interpret their statutory authority,” she said.

Amiri, the ACLU attorney, says it’s less clear if the federal government would have the power to keep access to birth control coverage.

“Congress would have the power to fix it, depending on how the court rules. Whether HHS itself could issue a new regulation to be a workaround is really hard,” she said.

“I don’t know that there is another way to provide seamless coverage.”