The Jarndyce v. Jarndcye of Church-State Cases

The Contraception Mandate is back at the Supreme Court

The Contraception Mandate litigation is the Jarndyce v. Jarndyce of church-state cases: a lawsuit, or, rather, collection of lawsuits, that seems to go on and on without ever reaching an end. True, unlike the Bleak House original, the Contraception Mandate litigation isn't making anybody rich. But in its capacity to draw in numerous parties and lawyers and maintain its place on the Supreme Court docket for years, the litigation does seem a bit Dickensian.

The litigation began in 2011, when the Obama Administration promulgated regulations under the Affordable Care Act that required employers to cover contraceptives, cost-free, in their employee health plans. The Obama Administration exempted churches from the Mandate and, after it received complaints, grudgingly offered religious non-profits an "accommodation." A religious non-profit could avoid the Mandate, and forgo covering contraceptives in its plan, if it filed a form indicating that it objected to covering contraceptives as a matter of religious principle, in which case the plan's provider would have to cover the contraceptives itself, without cost to employer or employee.

Neither the exemption nor the accommodation applied to for-profit corporations. Nonetheless, in Burwell v. Hobby Lobby (2014), the Court ruled that the government must grant an accommodation to closely held, for-profit corporations that objected to covering contraceptives for religious reasons. The Court did so under the Religious Freedom Restoration Act (RFRA), which provides that the government cannot substantially burden a person's exercise of religion unless the government has a compelling reason for doing so and has chosen the least-restrictive means. Requiring a closely held corporation to cover contraceptives would violate RFRA, the Court held, since a less-restrictive alternative was available. The government could offer for-profits the accommodation it offered religious non-profits—submit a form and have your plan's provider cover the contraceptives—which would achieve the government's interest in ensuring access to cost-free contraceptives without infringing on employers' religious freedom.

Meanwhile, in a separate litigation, some religious non-profits were challenging the accommodation itself. These parties, including a Catholic order called the Little Sisters of the Poor, argued that the accommodation itself violated their religious freedom, since, by submitting the required forms to their plan providers, they would still be complicit in the act of offering contraceptives to their employees, an act they considered gravely immoral. As a matter of religious conviction, they maintained, they could not participate, even indirectly, in such plans.

This litigation also reached the Supreme Court, in a 2016 case called Zubik v. Burwell, in which the Court took a rather unusual step. Rather than reach a decision on the merits, the Court remanded the case and directed the lower court to give the parties another chance to settle their dispute, since the parties' positions were, as a practical matter, not so far apart. Religious non-profits would not object if their insurance providers offered contraceptives through independent plans, and the government admitted that this arrangement would achieve the objective of providing women with contraceptives cost-free. The solution to the dispute seemed obvious.

That's where things stood when the presidential election of 2016 brought a new administration to power. Elections have consequences. The Trump Administration
wrote new regulations that extended the exemption for churches to religious non-profits like the Little Sisters. Under the new regulations, religious non-profits, like churches, were no longer subject to the Mandate.

One might have thought that would bring the Mandate litigation to an end. It did not. The Commonwealth of Pennsylvania now sued, arguing that the federal government lacked authority to issue the new regulations, either under the Administrative Procedure Act or under RFRA. The Little Sisters of the Poor then sought to intervene to defend the new regulations. The litigation continued, with the parties having switched roles. Religious non-profits now found themselves on the side of the federal government.

This new case, Little Sisters of the Poor v. Pennsylvania, is now before the Supreme Court, on cert from the Third Circuit. The case presents a few complicated issues, including questions about state standing, appellate standing, administrative procedure, and nationwide injunctions. The case also raises an interesting, and new, RFRA issue. In the current case, the question is not whether RFRA requires the federal government to grant an accommodation. The question is whether RFRA allows the federal government to grant an accommodation broader than the one the Court already has authorized. As Kevin Walsh observes in a recent Legal Spirits podcast, this is a question with potentially big implications for church-state law.

Why does the Mandate litigation go on and on? As I said, it's not a question of money. Lawyers are not getting rich on these cases. The litigation continues because people care deeply, as a matter of principle, about the result, and because each side views the other as an existential threat. For proponents of the Mandate, it's about women's health and equality, and about beating back the obscurantist forces that threaten both. For opponents, it's about affirming their deepest faith commitments, notwithstanding pressure from the state and progressive opinion that seeks to crush them. Even when a practical solution seems available—as the Court noted in Zubik—the parties find it difficult to compromise. The symbolic stakes are too high.

In short, the Contraception Mandate litigation, like so many other disputes over law and religion, reflects the deep polarization in our society. As long as that polarization continues, cases like Hobby Lobby, Zubik, and Little Sisters will continue to arise—as well as cases like Masterpiece Cakeshop, Fulton v. City of Philadelphia, and many others.

The Court was supposed to hear the Little Sisters case this month, but postponed argument because of the coronavirus epidemic. The Court will decide the case at some point in the future. When the Court does issue its ultimate decision, whenever that occurs and however the Court rules, that should end the Contraception Mandate litigation once-and-for-all, right? What could remain to be decided?

Don't count on it.