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SCOTUS punts on birth control lawsuit

Wow.

Zubik v. Burwell was supposed to be an epic showdown over the power of religious objectors to limit the rights of others. A sequel to the Court’s 2014 decision in Burwell v. Hobby Lobby, Zubik involved regulations expanding women’s access to birth control that the conservative justices appeared to endorse in Hobby Lobby — even as they struck down a more direct method of providing contraceptive coverage to working women.

At oral arguments, however, the four remaining conservatives seemed to have a change of heart. Even Justice Anthony Kennedy, the justice who signaled the loudest in Hobby Lobby that he would tolerate the kind of regulations at issue in Zubik, appeared openly hostile towards the Obama administration’s arguments. The case seemed to be barreling towards a 4-4 non-decision. If conservative Justice Antonin Scalia had not died last February, it is all but certain that the case would have ended in a crushing defeat for the administration and for many women who hoped to benefit from the administration’s birth control rules.

But that’s not going to happen — at least not yet. On Monday, the Supreme Court handed down a brief, three-page opinion that effectively punts the case until next year at the earliest (and, presumably, after someone has been confirmed to fill Justice Scalia’s seat). The opinion explicitly “expresses no view on the merits” of Zubik and a raft of related cases. Instead, it sends these cases back down to the lower courts to consider the views expressed by both parties in supplemental briefing requested by the justices themselves.

[…]

As the Supreme Court notes in Monday’s opinion, the administration “has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’” However, that’s not the end of the story. The administration also explained to the Court that the justices’ proposed compromise may not work for employers that self-insure (that is, employers who pay out health claims directly to employees rather than joining them into a broader insurance pool).

In any event, the one thing that’s absolutely clear from the Court’s very brief, unsigned opinion inZubik is that it will not resolve any of the nuances of how employers should exempt themselves, what should happen to women who seek birth control after an employer exempts itself, and whether self-insurance or other situations present unique problems that call for a distinct rule. The Court wants this case to go away, at least for now.

See here for the background. This is just amazing. SCOTUSBlog provides some further analysis:

One reading of Monday’s developments was that the Court, now functioning with eight Justices, was having difficulty composing a majority in support of a definite decision on the legal questions. Thus, what emerged had all of the appearance of a compromise meant to help generate majority support among the Justices. With this approach, the Court both achieved the practical results of letting the government go forward to provide the contraceptive benefits and freeing the non-profits of any risk of penalties, even though neither side has any idea — at present — what the ultimate legal outcome will be and, therefore, what their legal rights actually are under the mandate.

Those uncertainties are now likely to linger through the remainder of President Obama’s term in office, which ends next January. The appeals courts may well order the filing of new legal briefs, and may hold new hearings, before issuing a new round of rulings on the controversy. However, the entire future of the ACA, including its birth-control mandate, may now depend upon who wins the presidential election this year and which party has control of Congress when it reassembles in 2017.

The three issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the ACA mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, whether the government had a “compelling interest” in assuring cost-free access to contraceptives, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the “least restrictive means” to carry out the mandate.

Doing on Monday much the same that it had done in several temporary orders at earlier stages of this controversy, the Court accepted that the non-profits already had given the federal government sufficient notice of their objection to the mandate, and that the government could use that notice as the basis for going ahead to provide actual access, at no cost, to the employees and students of those institutions.

The unsigned opinion that the Chief Justice announced included an attempt to explain why the Court was bypassing a definitive ruling on the legal issues. It cited the replies that both sides had filed, after the cases had been argued, in reaction to a suggested compromise plan devised by the Court.

The Court on Monday interpreted those filings as containing concessions that move the two sides somewhat closer together, but at the least provided a basis for letting the federal appeals courts be the first to analyze the meaning and impact of those concessions. The Court expressed the hope that the two sides would use this new opportunity, in the appeals courts, to work toward common ground that would protect the religious sensibilities of the non-profit institutions at the same time that women of child-bearing age would not be deprived of contraceptive devices and methods.

“We anticipate,” the Court said, “that the courts of appeals will allow the parties sufficient time to resolve any outstanding issues between them.” That appeared to be an invitation for the lower courts at least to explore whether the two sides could reach agreement without prolonging the court battles. It conceded, though, that there may still be “areas of disagreement” between the two sides.

It may just be my cynicism showing, but I don’t expect any of the litigants to go seeking common ground. This was from the beginning an ideological fight, and they’re not going to settle for anything less than victory. As the Trib noted, the district court in Texas originally found for the plaintiffs, HBU and East Texas Baptist University, but the Fifth Circuit overturned that verdict. I have no idea what happens from here, but I look forward to a Supreme Court with either a Justice Merrick Garland or a President Clinton-named Justice getting the case again in the future. TPM, Dahlia Lithwick, Rewire, and Daily Kos have more.

Once more with SCOTUS and birth control

Here we go.

In another major case concerning Texas women’s reproductive care, the U.S. Supreme Court on Wednesday will consider if the right to religious freedom is broad enough to completely exempt nonprofits with religious objections to birth control from providing women access to it through their insurance plans.

The case, formally known as Zubik v. Burwell, pits religious nonprofit groups — including East Texas Baptist University and Houston Baptist University — against the federal government over a provision of the Affordable Care Act requiring some employers to provide contraceptive coverage to female workers.

The Texas case is among seven related lawsuits the high court agreed to hear together in which religious nonprofits argue the mandate infringes on their religious freedom. The Obama administration says the groups are offered a way around the requirement through a mechanism that still gives women access to free contraception.

Under the federal health care act, employers with 50 or more full-time employees are required to offer health plans with “minimum essential coverage,” including access to federally approved contraception for women, without co-payments or deductibles.

Religious nonprofits can seek “accommodations” to be exempted from the contraceptive mandate by submitting a form or notification certifying the organization’s objection on religious grounds. Doing so transfers the administrative duties of providing contraception coverage from the employer to the insurance company or a third party, which takes over handling the claims.

But the nonprofits argue they should be exempted from the requirement altogether because they are still “being forced to facilitate access” to contraceptives they oppose. In this case, the religious groups object to emergency contraceptives, including the so-called morning-after-pill, and intrauterine devices, which they liken to so-called “abortifacients” — or drugs that induce an abortion. (Health experts and scientists have disputed that claim.)

That parenthetical statement really understates the matter. People are free to believe what they want, but when those beliefs are contradicted by objective reality, I’m not sure why the law needs to accommodate them. Too bad I’m not on the Supreme Court.

Anyway. I’ve been following the HBU/East Texas Baptist lawsuit from the beginning – see here, here, and here for the basics, and remember that the full Fifth Circuit – yes, that Fifth Circuit – refused to uphold the initial lower court ruling in HBU’s favor.

Given the current composition of the Court, the fact that nearly every appeals court rejected the plaintiffs’ arguments, and the way things went with the HB2 case, there was a fair amount of optimism going into this one that the good guys would prevail. Unfortunately, it looks like perhaps the Bad Anthony Kennedy showed up for oral arguments.

In Burwell v. Hobby Lobby, the last major case brought by religious objectors to birth control, the Court’s five justice conservative majority effectively wrote the “substantially burden” requirement out of the law. As Justice Samuel Alito wrote for the Court in that case, the Hobby Lobby plaintiffs “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.”

It quickly becomes clear during the Zubik argument, however, that the Court’s four justice liberal bloc wants to put the words “substantially burden” back into the law. Justice Sonia Sotomayor notes that, under the conservatives’ truncated reading of RFRA, it is unlikely that a plaintiff would ever fail to show a substantial burden because “we’re not asking you to do anything except identify yourself.” Justice Stephen Breyer even goes so far as to wax philosophic about how much easier life was in the few years before RFRA was enacted.

Kennedy, however, wants no part of this project to make “substantially burden” mean something again. “It seems to me that there is a substantial burden” in this case, Kennedy tells Solicitor General Don Verrilli in an uncharacteristically candid moment. About a minute later, Kennedy is even more candid, disclosing that he believes that this entire case comes down to whether the government could have used a less restrictive alternative (the third prong of RFRA) to provide birth control to women whose employers object to birth control.

For most of Verrilli’s time at the podium, however, Kennedy is sphinx-like, saying little and revealing little about whether he believes the government has made its case. Chief Justice John Roberts and Justice Alito spend this period taking shots at Verrilli. At a major argument over abortion earlier this month, the Court’s conservative wing appeared stilted and unsure how to seize the offensive with Scalia absent from the bench. Today, with Scalia’s seat literally absent from the Courtroom and just eight chairs facing the audience and the attorneys, it was clear that Roberts and Alito had their mojo back.

In their briefs, the religious objectors argue that requiring them to fill out a form in order to receive a contraceptive plan is not the “least restrictive means” of ensuring access to birth control. The government could have created a new birth control entitlement program funded by taxpayers (an alternative that Kennedy briefly appears skeptical of), or they could have offered birth control-only plans in the Affordable Care Act’s health care exchanges to women whose employers refuse to provide them with contraceptive coverage.

Alito focuses on the later of these two opinions, in a series of questions for Verrilli that can fairly be described as combative and nasty. At one point, Alito demands to know how the government can claim that Obamacare’s exchanges are “so unworkable” that they cannot provide an alternative for women that need birth control-only plans. It’s the sort of remark that seems more at home on Fox News than in the Supreme Court of the United States, and its delivered in a tone that seems to betray Alito’s bitterness over the fact that he has twice tried and failed to gut Obamacare by judicial decree.

In response, Verrilli argues that offering birth control-only coverage in the exchanges would not be a workable solution. For one thing, it’s not currently legal to sell such single-subject plans in the exchanges. For another, it’s far from clear that any private insurer would agree to offer such a plan. And even if they did, there’s no guarantee that a woman would be able to buy a plan that included the same doctors she relies upon for other medical care. This could lead to a world where a woman’s regular physician would be unable to prescribe contraception or even counsel the woman on many issues related to her reproductive health. And it would add an additional layer of complication that would discourage many women from seeking out contraceptive care.

Roberts, meanwhile, embraces the religious objectors’ argument that the government is “hijacking employers’” health plans via its fill-out-the-form regulation. This proves to be a very effective argument for Roberts, largely because it appears to sway Kennedy near the end of Verrilli’s time at the podium. In response to Verrilli’s attempt to explain some of the details of how the fill-out-the-form rules operate, Kennedy snaps back “that’s why it’s necessary to hijack the plans!”

In contentious cases, Kennedy often appears to play the role of Hamlet, asking questions of both sides and giving off an air of uncertainty about how he will ultimately vote. But when Kennedy shows real emotion in one of his questions, or when he adopts the loaded language of one of the parties, that’s normally a good sign that he’s made up his mind. When the votes are cast and the Court’s decision is released, it’s a good bet that Kennedy will vote against Team Birth Control.

Yeesh. The good news from our perspective in Texas is that a 4-4 split would leave the Fifth Circuit ruling against the plaintiffs in place. That’s a small consolation for anyone in a state governed by the Eighth Circuit, which was the one to buy into that dumb argument, of course. Perhaps some day we can get a ninth Justice confirmed and settle this once and for all. In the meantime, this may be the best we can do. Have I mentioned that this election is super important? A transcript of the oral arguments is here, while TPM, SCOTUSBlog, Kevin Drum, and the Trib have more.

HBU contraception lawsuit goes to SCOTUS

Here we go.

The U.S. Supreme Court will decide whether religious nonprofits should be required to provide birth control benefits to female employees even if the employers object to certain contraceptives on religious grounds.

The court announced Friday that it would consider a case brought by East Texas Baptist University and Houston Baptist University against the federal government over a provision of the Affordable Care Act requiring some employers to provide contraceptive coverage. It is one of seven related cases from around the country that the high court agreed to hear at once.

The religious universities oppose emergency contraceptives, including the so-called morning-after pill, and intrauterine devices, which they liken to “abortifacients” — or drugs that induce an abortion. (Health experts and scientists have disputed that claim.)

[…]

Under federal religious freedom laws, religious nonprofits can seek “accommodations” to be exempted from the contraceptive mandate by submitting a form or notification certifying the organization’s objection to paying for contraception coverage on religious grounds. Doing so transfers the administrative obligations of providing contraception coverage from the employer to the insurance company or a third party, which takes over handling the claims.

But the universities argue that requirement infringes on their religious freedom because female employees may still be able to obtain contraception under that process.

See here, here, here, and here for the background. As the Chron notes, the Supremes actually took appeals from seven related contraception/insurance cases and combined them. They’ll hear oral arguments in March and render their decision in June as usual, just in time to capture people’s attention during the Presidential race. ThinkProgress, RH Reality Check, and SCOTUS Blog, which details all seven cases, have more.

Full Fifth circuit denies HBU in contraception lawsuit

Still no joy for them.

A federal appeals court will not reconsider its ruling, delivered in June, that the Affordable Care Act’s contraceptive rules do not violate the religious freedom of church-based organizations in Texas.

The religious organizations, including two Catholic dioceses and the University of Dallas, had asked the full 5th U.S. Circuit Court of Appeals to reject the ruling by a three-judge panel.

The court refused 11-4, issuing an opinion that did not discuss the merits of the case.

Three of the justices on the losing side, however, issued a scathing dissent that called the original ruling “ironic and tragic” for denying the free exercise of religion and placing “literally millions of dollars in fines and immortal souls on the line.”

“This should have been an easy case for upholding religious liberty,” said the dissent, issued Thursday and written by Justice Edith Jones and joined by Justices Edith Brown Clement and Priscilla Owen. The three are among the court’s most conservative members.

See here, here, and here for the background. It would be far more accurate to say that those three are among the most ideologically driven judges, not just on that court but any federal court, though I suppose it’s not polite to say things like that. As of August, when Ken Paxton found time in his busy schedule to file an amicus brief on behalf of the plaintiffs, there wasn’t a circuit split in cases like this, but now there is and there’s been an even more radical anti-contraception ruling in another federal court, so the likelihood of SCOTUS hearing some case related to this, whether it’s HBU’s or one of the others out there, seems pretty high. And after Obergfell, one can only imagine the caterwauling and chest-thumping vows of defiance that will ensue if the plaintiffs lose there as well. The Press has more.

Paxton files amicus brief in HBU contraception lawsuit

Of course he does.

Female employees of religious nonprofits should not be given insurance coverage for birth control if their employers object to certain contraceptives on religious grounds, according to a brief filed at the U.S. Supreme Court by Texas Attorney General Ken Paxton.

Paxton’s “friend of the court” brief was filed Monday in support of a lawsuit brought by East Texas Baptist University and Houston Baptist University against the federal government over a provision of the Affordable Care Act requiring some employers to offer health plans that include contraceptive coverage.

The religious universities oppose emergency contraceptives, including the so-called morning-after pill, and intrauterine devices, which they liken to abortifacients. (Health experts and scientists have disputed that claim.)

[…]

In the brief filed by Paxton’s office, state attorneys wrote that the “supposed ‘accommodation’” will still “coerce employers to proceed with a course of action despite a belief in its religious impermissibility.”

“Many employers around the country feel driven by their faith to care for their employees by providing them health insurance,” the brief reads. “But some employers find it incompatible with their religious convictions to provide that health insurance when it means contracting with a company that then, by virtue of that very relationship, becomes obligated to pay for drugs regarded as abortifacients.”

A federal district court previously sided with the universities, blocking the requirement from going into effect. The U.S. Department of Health and Human Services appealed the case to the New Orleans-based U.S. 5th Circuit Court of Appeals — considered the most conservative appellate court in the country — which reversed that decision, saying the universities had “not shown and are not likely to show that the requirement substantially burdens their religious exercise under established law.”

In its ruling, the panel of the appellate court sided with the federal government in its argument that the universities’ religious exemption from providing contraception coverage did not extend to third parties left to administer insurance plans if a religious organization is exempted.

See here, here, and here for the background. While HBU and ETBU won in district court, no plaintiffs have prevailed at the appellate level yet. As such, there isn’t a district split yet for SCOTUS, though as we saw with the Obamacare subsidies case they don’t need to have one to take up an appeal. I’ll be surprised if it’s not on their docket by next year.

HBU wins contraception mandate lawsuit

This is very disappointing.

The federal government cannot force Houston Baptist University to pay for emergency contraception services as part of its employee health insurance plans, according to a ruling Friday by U.S. District Judge Lee Rosenthal.

The decision is a victory for HBU and East Texas Baptist University in their joint lawsuit against the government over the constitutionality of Affordable Care Act provisions about employer-paid birth control.

“The government doesn’t have the right to decide what religious beliefs are legitimate and which ones aren’t,” said Eric Rassbach, an attorney with the Becket Fund for Religious Liberty, a public interest law firm representing the two Texas colleges.

The universities said that obeying the Health and Human Services contraception mandate would violate their religious conscience. In a 46-page opinion, Rosenthal said they proved their positions.

“The belief need not be long-standing, central to (their) religious beliefs, internally consistent with any written scripture or reasonable from another’s perspective. They need only be sincerely held,” Rosenthal wrote.

The Obama administration exempted churches from the mandate, but not affiliated organizations like religious schools and hospitals.

The Obama administration is likely to appeal this ruling, but I wouldn’t hold out much hope. In the meantime, there’s a bigger case working its way towards the Supreme Court, involving secular companies such as Hobby Lobby, which want to establish the principle that corporations can have religious rights. If they win, then the employees of these institutions, who may not share the religious views of the owners of said corporations themselves or who may not even be religious, will have their health insurance options dictated to them.

You may be thinking to yourself “Wait, I thought it was the Catholics that opposed birth control. What’s up with Baptists opposing it?” You would not be the only one wondering about this.

I’m proud to be a part of a movement whose great concern is learning to love your neighbor as you love yourself. And as we move into the New Year, I hope those voices of justice will grow stronger and I wish for some other things as well.

I hope that the Religious Right will drop birth control as an issue. During the political season, the conservative Evangelical case against birth control was loud and clear. I spoke to Frank Schaeffer, one of the founders of the Religious Right, trying to remember my days growing up in a conservative Evangelical household. “I don’t remember birth control ever being an issue before. It wasn’t tied to the Evangelical pro-life movement, was it? Did I miss something?” I asked.

“No. Birth control wasn’t an issue at the beginning.” Schaeffer replied. “This is a case of the enemy of my enemy is my friend.”

In other words, the Religious Right took up the cause of birth control because the Roman Catholic Church is against birth control. Since the Religious Right Evangelicals and some Catholics could join forces and become more powerful in their shared quest to defeat Barack Obama, then they decided to add birth control as an issue. We began to hear the pill referred to more as an “abortifacient.”

I am now a Progressive Presbyterian, but growing up as a teen in a conservative Christian culture, I read Passion and Purity. I was advised to take the pill for medical reasons and refused because I thought it would make sex more tempting. I also thought that using a condom would be like premeditated sin, because you would have to have to buy them beforehand and plan on having sex. But there was no sense that birth control was somehow tied to abortion.

I’m hoping that since the Evangelical tie of birth control to the pro-life movement was a pragmatic political flop, it won’t affect conservative women who want to decide when they are ready to have a child. There is already a teen pregnancy problem in red states. We don’t need to exacerbate the issue, jeopardizing the lives and futures of young women by demonizing birth control.

I guess it’s a good thing for HBU and ETBU that their “belief” need not be “long-standing, central to (their) religious beliefs, internally consistent with any written scripture or reasonable from another’s perspective”, because as recently as last decade, this wasn’t part of their beliefs. In fact, one of their peer institutions that also sued the federal government over this mandate was providing emergency contraception coverage as part of its health insurance plan at the same time it was asking for injunctive relief against being required to provide emergency contraception coverage. Don’t make me do something I’m already doing, Your Honor!

The key to understanding all this is in the quoted bit above. Take a look at the reason the lawsuit was filed in the first place.

Dub Oliver, president of East Texas Baptist University, told KLTV 7 that he opposes the provision because he believes that “life begins at conception” and that contraception drugs cause abortions.

But the statement that “contraception drugs cause abortions” is not a matter of faith, it’s a matter of testable, provable fact. And the facts as we now know them show that this belief is mistaken.

Several scientists and doctors said in interviews that this view did not reflect the way the birth control methods actually work. “There’s so much evidence for how these things work prior to fertilization,” said Diana L. Blithe, director of contraceptive development for the National Institute of Child Health and Human Development. “And there’s no evidence that they work beyond fertilization.”

She and other experts said these methods are so effective in preventing fertilization that the chance of an egg and sperm uniting is slim. If fertilization does occur, the embryo runs a high risk of not implanting for natural reasons. While several medical Web sites, including some from government agencies, raise the possibility that the morning-after pill could affect implantation, Dr. Blithe and others said it had not been scientifically verified that the drugs work that way.

One morning-after pill, Plan B, contains a synthetic progesterone that blocks ovulation, said Dr. Anita Nelson, a professor of obstetrics and gynecology at the David Geffen School of Medicine at the University of California, Los Angeles. Recent studies have indicated that women who take Plan B after ovulation have a normal chance of becoming pregnant, and that Plan B does not prevent their fertilized eggs from implanting, Dr. Nelson said. Ella, the other morning-after pill, delays ovulation by blocking the body’s progesterone, she said.

She said that Ella was a hormonal cousin of the drug used in an acknowledged abortifacient, RU-486, which is given to women who are up to about seven weeks pregnant and stops the development of an already-implanted embryo. But the RU-486 hormone is a very high dose, between 200 to 600 milligrams, whereas the Ella hormone is 30 milligrams, Dr. Nelson said. She said that Ella had not been tested to see if it prevented implantation. But she added that the RU-486 hormone at low doses acts only to prevent ovulation.

See also this NPR story on the same subject. The evidence at hand was sufficient to convince Catholic bishops in Germany that emergency contraception was acceptable, at least in some cases. But that’s what this is about, conflating birth control with abortion, and teaming up with the Catholic Chuch – the “enemy of my enemy” – against the Obama Administration by conflating birth control with abortion. That says to me that this is much more about politics than it is about faith. To the extent that faith is involved, it’s a matter of convenience. I don’t think that’s worth trumping the rights of the employees of these institutions, and I’m disappointed that Judge Rosenthal bought into it. BOR has more.