The Supreme Court announced on Friday that it will hear a bloc of cases, all of which present the issue of how far employers may go to cut off their employees’ access to birth control coverage those employees are entitled to receive under the law.
In its 2014 Hobby Lobby decision, a 5–4 Court held that employers who object to birth control on religious grounds could refuse to include contraceptive coverage in their employer-provided health plans, even though federal rules required them to do so. Hobby Lobby, however, strongly implied than the federal government could use an alternative method to ensure that these employees still receive contraceptive care. Under this alternative, religious objectors must fill out a form declaring their objection to birth control and disclosing which company administers their insurance plan. The government then works directly with this insurance administrator to provide contraceptive coverage plans to the objecting employer’s workers.
The federal courts of appeal are nearly unanimous in agreeing that this fill-out-the-form alternative is acceptable under federal law.
A bloc of seven cases that the Supreme Court agreed to hear on Friday all present the question of whether religious objectors may refuse to comply with a legal scheme that exempts them from having to offer contraceptive care if they only fill out a short form.
Notably, one of the seven cases the Court agreed to hear is Little Sisters of the Poor v. Burwell, a case that religious conservatives and conservative media have latched onto because of the unusually sympathetic plaintiff behind this case. Fox News viewers can expect to hear a great deal about “Obama’s war on nuns” in the coming months.
Yet, while Little Sisters offers religious conservatives a bludgeon that it can use to attack the Obama administration, it is difficult to justify the Court’s decision to take this case as a matter of law. That’s because the Little Sisters use a special form of health plan — what is known as an “ERISA-exempt church plan” — that most likely exempts the plan from having to offer birth control coverage no matter how the justices resolve the fill-out-the-form issue. As a general rule, the Supreme Court does not like to take cases about nothing.
The Court’s decision to take the Little Sisters case, in other words, means that at least four justices decided to hear a case with little legal salience but a great deal of political salience for opponents of the Obama administration. That’s not good news for women whose employers object to birth control.