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SCOTUS Will Hear All the Obamacare Contraception Exemption Cases

By Casey C. Sullivan, Esq. | Last updated on

Well, here's some exciting news for your weekend. This morning the Supreme Court granted certiorari to all seven Obamacare contraception mandate appeals. Under the Affordable Care Act, employers are required to provide plans that cover employee's birth control. Certain religious, non-profit employers are exempted from that requirement: they just send in a form and someone else handles employee contraception.

But, petitioners argue, even that contraception exemption forces them to participate in something that's against their religious belief. Their claims have been essentially laughed out of every appeals court to date -- except for the Eighth Circuit, which recently broke ranks and ruled in religious employers' favor. Now, everyone will get to make their argument before the highest power available.

Employers Take Exception to Contraception Exemption

Petitioners are hoping their "trigger theory" argument will fare better in the High Court than it has in lower ones. Under the Obamacare contraception mandate system, religious, non-profit employers who object to providing employee contraception directly can opt out by sending in a simple form to their health insurance plan's administrator. It can even be a one page letter. A few simple sentences would probably suffice.

These employers -- nuns, religious universities, and church organizations -- argue that even sending in the form triggers their participation in provisioning contraception, something they religiously object to. That illegally burdens their religious freedom under the First Amendment and Religious Freedom Restoration Act, they say.

A Weak Theory

The problem is, to accept that argument the Court would have to rule that individuals determine what constitutes a significant religious burden. The pitfalls of that should be obvious. Not only could individuals determine that contraception opt-outs burden their religious freedom, but so do taxes, marriage laws, and building codes.

So far, the only circuit court to embrace the trigger theory has been the Eighth, who ruled that the contraception opt out was unconstitutional this September. The Second, Third, Fifth, Sixth, Seventh, Tenth and D.C. Circuits have all found that the opt out process places no substantial burden on religious practice -- and they've been resolute in holding that courts, not individuals, determine when a burden is present.

Reading the Tea Leaves

The trigger theory might have some supporters on the Court, however. This is, after all, the Court that gave us Hobby Lobby. The grants of cert here could indicate that the Supreme Court is willing to extend the implications of that case -- or at least that some of the Justices are. It takes four Justices to grant cert; the Court's conservative wing could have easily pulled together those votes.

But there's also a chance that the Court will side with the majority of the circuit courts and simply uphold the law as is. Chief Justice Roberts may be willing to join with the Court's liberals to once again swat down a challenge to the Affordable Care Act. But that's a risky bet. Almost all religious freedom claims the Court has heard in recent years have been successful.

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