You may see Obamacare back in front of the Supreme Court next term, at least if religious nonprofits have their way. Just over a year ago, the Court ruled in Hobby Lobby that the Affordable Care Act must accommodate the religious objections of closely held corporations.
Now, the court is facing a slew of cert petitions from Catholic nonprofits, nuns, Roman Catholic colleges, and others who say that their religious freedom is still violated ... even with the accommodations.
The nonprofits all object to being involved with Obamacare's contraception mandate in any manner. They've all made similar legal arguments. They've all lost -- repeatedly. Will the Supreme Court be more sympathetic to their objections?
An Accommodation to the Accommodation
Probably not. First, the legal argument is weak, resting on a dubious "trigger theory" that has been rejected by the seven different circuit courts. When the litigious religious organizations say they object to being involved with Obamacare's contraception mandate, they are in fact objecting to opting out of that mandate.
After Hobby Lobby, the Obama administration created procedures that allow nonprofit organizations to avoid the mandate by sending a simple letter to their health insurance plan's administrator, who then covers contraception costs for their employees. According to the plaintiffs, sending that letter triggers their involvement in contraception, significantly burdening their religious freedom and violating the First Amendment and Religious Freedom Restoration Act.
Who Decides When Religious Practice is Burdened?
More interestingly than the trigger theory, contraception, or Obamacare, is the question of who determines when religious practice is burdened. The circuits have been unanimous in ruling that religious burdens are determined by the courts, not by the nonprofits themselves. Under the courts' view, a group of Colorado nuns may say that sending an opt-out letter burdens their religious practice and bestains their souls, but the courts can make their own decision.
In so ruling, the circuits have relied on Supreme Court precedent from the mid 80's. In Bowen v. Roy, a father practicing a Native American religion objected to the government's use of Social Security numbers for his daughter. That use, he argued, "robbed her of her spirit" and burdened his religious belief. The Supreme Court disagreed, noting that religious beliefs can be accommodated -- to a point. They cannot "radically restrict the operating latitude of the legislature."
Appealing to a Higher Power
The plaintiff's arguments haven't fared well. In fact, have been roundly rejected. Notre Dame was essentially laughed out of the Seventh Circuit, twice, for claiming that sending in the form violated its religious freedom. After all, the Seventh noted, the university had already sent in the form it was objecting to sending.
Will the High Court step in and grant their prayers for relief? After all, many of the circuit court decisions do have dissenters. The plaintiffs (nuns, religious schools and the like) are certainly a sympathetic crew. That could be enough for the Court's more conservative Justices to band together and grant cert.