Well hold onto your hat, folks—we got ourselves a high-profile circuit split.
Religious freedom and its limits have been in the public’s mind a lot over the past few weeks. And now it’s time to explore it even more. Yesterday, in an unanimous decision, the Eighth Circuit ruled in favor of religious nonprofits that had challenged the Affordable Care Act’s contraception coverage regulations. As one might expect, that contraception issue is already being dealt with by appellate courts, and even petitioned to the Supreme Court. And now that there’s a split, we’ll likely see a lot more of this issue.
Obviously this case extends beyond the Sharpe Holdings, Inc. et. al v. Department of Human Services et al just decided by the Eighth Circuit. Since the Affordable Care Act was passed, contraception—particularly emergency contraception, which many religious organizations believe to be akin to abortion—has been a major sticking point for religious and conservative groups. You may recognize this battle from any number of lower appellate courts, and even the big Hobby Lobby decision at SCOTUS.
The law allows religiously affiliated non-profit employers to opt out of paying for contraceptive coverage directly, instead having insurers provide coverage at no extra cost to the employee. But for many groups the opt-out process still makes them complicit in providing birth control to employees. But as Steve Delchin writes for the Sixth Circuit Appellate Blog, after the sixth circuit became the sixth court to side against them, so far courts haven’t felt the same:
In Friday’s 3-0 opinion, once again penned by Judge Moore, the Sixth Circuit panel considered the impact of Hobby Lobby but adhered to its original June 2014 disposition of the case. The panel explained that while the Supreme Court in Hobby Lobby had held that the federal government cannot force closely held companies with sincere religious objections to provide contraception coverage to their employees, “that issue is fundamentally different from the issue at the heart of this case—whether an entity’s decision not to provide such coverage by exercising an accommodation [under federal law] is, by itself, a violation of that entity’s religious beliefs.” The panel explained that in its original June 2014 opinion, it upheld the accommodation against a RFRA challenge, and “[n]othing in Hobby Lobby changes this analysis.”
To bolster its decision, the Sixth Circuit panel highlighted how six other circuits have addressed whether the accommodation passes muster under the RFRA, and all six have upheld the accommodation. All six, moreover, have held that Hobby Lobby does not compel a contrary conclusion.
But now the Eighth circuit has disagreed. According to Circuit Judge Roger Wollman, who penned the decision, the court must defer to the “sincere religious belief that [the employers’] participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.”
Many believe this is a sure sign that the high court will take up the case this fall, given that it mirrors another high-profile case’s path: Obergefell v. Hodges, the case that effectively legalized same-sex marriage this year.
When the high court resumed its term this time last year, there were seven same-sex marriage petitions they hoped the justices would hear, which had all lost at the lower appellate courts. But it wasn’t until a split decision came, thanks to the Sixth Circuit, that the Supreme Court finally took the issue up. And now we’re seeing a similar pattern with the ACA’s contraception issue. Until now, the Sixth, Third, Fifth, Seventh, Tenth, and D.C. Circuit had all rejected the religious nonprofits’ claims.
Which way the court goes, for now, is a hazy at best. The only thing that’s certain is that for now, religious freedom has overtaken subsidies as the main issue with the ACA. Though the decision in King v. Burwell made it less likely that there’s a silver bullet out there to destroy the ACA, chipping away at contraception coverage is a major issue for many feminist and other organizations. With a circuit split, ACA engines are likely revving on both sides of the aisle.