For the third time in four years, the U.S. Supreme Court will hear a challenge to a portion of the Affordable Care Act (ACA), President Obama’s signature health reform law passed in 2010.  On November 6, 2015, the Supreme Court issued a writ of certiorari in seven cases addressing the ACA’s birth control mandates and the rights of religious employers.¹ 

Two years ago, the Supreme Court held in Burwell v. Hobby Lobby² that certain for-profit corporations could object to federal regulations that forced employers to provide insurance coverage to their employees covering birth control that takes effect after fertilization (so-called “abortifacients”).  These employers argued that their owners’ religious rights were protected by the Religious Freedom Restoration Act (RFRA) and that the burden on those rights is subject to a form of “strict scrutiny” review under RFRA. 

Now, several religious non-profit employers challenge a different set of regulations promulgated under the ACA.  While the Department of Health and Human Services has offered these employers a limited exemption from the general requirement to provide birth control to their employees, existing regulations still mandate that:  (1) the religious employer work with a health insurance company that provides birth control directly to an employee; and (2) religious employers trigger this process by filling out a form—called the EBSA 700—to notify the federal government that the religious employer is accepting the exemption.³  Religious employers argue that this accommodation continues to substantially burden their religious practices and forces them to “deputize” another entity to provide birth control to employees, contrary to their religious principles.

While the First Amendment’s right to free exercise of religion does not protect religious beliefs from neutral, generally applicable federal laws or regulations like those at issue here, RFRA does.  RFRA provides, as a general rule, that the federal government “shall not substantially burden a person's exercise of religion.”⁴  If a person (or entity) demonstrates that government action has substantially burdened the exercise of religion, then the government must show the action is:  (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.”⁵

In this context, the government has argued before lower courts that the accommodation in place removes any “substantial” burden on religious employers, and that the existing accommodation is narrowly tailored to the compelling government interest in having employees gain access to birth control.  In the seven cases before the Supreme Court, the government won all of them at the appellate level.  However, the Eighth Circuit Court of Appeals recently ruled in favor of the mandate’s challengers—creating a “circuit split” on the question.⁶

The Court expects to hear argument in March 2016.  On the same day it issued its writ of certiorari, the Court also circulated a letter to the parties, suggesting that a plan for coordinated briefing be agreed upon to avoid duplicative arguments.⁷  A decision is expected by the end of the term in late June or early July 2016.