Re: Nonprofit challenges to the contraceptive coverage accommodation: On to the Supeme Court

[Marty Lederman]

http://balkin.blogspot.com/2015/10/supreme-court-sets-date-for.html

*Supreme Court sets date for consideration of nonprofit RFRA challenges to
contraception coverage accommodation*

Marty Lederman

As expected, the petitioners in Nos. 15-105, *Little Sisters of the Poor v.
Burwell, *and 15-119, *Southern Nazarene Univ. v. Burwell*, filed their
reply briefs earlier this week (*Little Sisters *here

; *Southern Nazarene* *here*
),
and the Court has now set all seven pending petitions for consideration at
its October 30 conference.  That means the Court might announce as early as
Monday, November 9 which, if any, of the cases it will consider.  As I
explained here

 and here , I think it is
likely that the Court will, at a minimum, accept the government's suggestion

and
grant the petition in No. 14-1505

, *Roman Catholic Archbishop of Washington v. Burwell*.  The
petitioners in *Little
Sisters *argue that the Court should grant their petition, too, principally
because they also raise a First Amendment question concerning the
constitutionality of the lines the government has drawn between the two
different accommodations it has offered to different sorts of religious
organizations.  The government argues at pages 21-24 of its brief

that
the Court should not consider that constitutional question, but should
instead confine its grant to the RFRA question.

On Wed, Sep 30, 2015 at 7:19 PM, Marty Lederman 
wrote:

>
> http://balkin.blogspot.com/2015/09/on-to-supreme-court-status-update-on.html
>
> *On to the Supreme Court: Status update on Roman Catholic
> Archbishop, Little Sisters, and the other nonprofit contraception
> accommodation cases*
>
> Marty Lederman
>
> Since I last wrote
> ,
> about the nonprofit RFRA challenges to the government's contraceptive
> coverage accommodation, a circuit split has developed, by virtue of a pair
> of decisions by the U.S. Court of Appeals for Eighth Circuit--*Sharpe
> Holdings, Inc. v. HHS
> * and *Dordt
> College v. Burwell *.
> In each case, the court of appeals affirmed grants of preliminary
> injunctions in favor of the RFRA claimants.  The court found that the
> plaintiffs were likely to prevail on showing that the contraception
> coverage accommodation substantially burdens their religious exercise.  As
> for the "least restrictive means" part of the RFRA analysis, the court did
> not assess the merits, but simply concluded that the government had not yet
> offered evidence, at the p.i. stage, sufficient to carry its burden of
> showing that denial of the requested exemptions would be the least
> restrictive means of advancing what the court assumed to be a compelling
> governmental interest.
>
> Meanwhile, over in the Supreme Court, there are seven petitions for
> *certiorari*pending, from cases decided by the D.C., Third, Fifth and
> Tenth Circuits.  This afternoon, in its brief in opposition to
> *certiorari
> 
>  *in
> Nos. 15-105, *Little Sisters of the Poor v. Burwell, *and 15-119, *Southern
> Nazarene Univ. v. Burwell*, the government informed the Court that
> *certiorari* in an appropriate case is now warranted in order to resolve
> the split created by the recent Eighth Circuit decisions.
>
> As expected, the government argues that the most suitable vehicle for the
> Court's review is Case No. 14-1505
> 
> , *Roman Catholic Archbishop of Washington v. Burwell.  *As I explained
> earlier
> ,
> and as the government elaborates in its brief
> 
>  today,
> the*Roman Catholic Archbishop *petition is the best candidate for *cert. 
> *because
> of several considerations, including that:
>
> -- The case was decided o

Nonprofit challenges to the contraceptive coverage accommodation: On to the Supeme Court

[Marty Lederman]

http://balkin.blogspot.com/2015/09/on-to-supreme-court-status-update-on.html

*On to the Supreme Court: Status update on Roman Catholic
Archbishop, Little Sisters, and the other nonprofit contraception
accommodation cases*

Marty Lederman

Since I last wrote
,
about the nonprofit RFRA challenges to the government's contraceptive
coverage accommodation, a circuit split has developed, by virtue of a pair
of decisions by the U.S. Court of Appeals for Eighth Circuit--*Sharpe
Holdings, Inc. v. HHS
* and *Dordt
College v. Burwell *.
In each case, the court of appeals affirmed grants of preliminary
injunctions in favor of the RFRA claimants.  The court found that the
plaintiffs were likely to prevail on showing that the contraception
coverage accommodation substantially burdens their religious exercise.  As
for the "least restrictive means" part of the RFRA analysis, the court did
not assess the merits, but simply concluded that the government had not yet
offered evidence, at the p.i. stage, sufficient to carry its burden of
showing that denial of the requested exemptions would be the least
restrictive means of advancing what the court assumed to be a compelling
governmental interest.

Meanwhile, over in the Supreme Court, there are seven petitions for
*certiorari*pending, from cases decided by the D.C., Third, Fifth and Tenth
Circuits.  This afternoon, in its brief in opposition to
*certiorari

*in
Nos. 15-105, *Little Sisters of the Poor v. Burwell, *and 15-119, *Southern
Nazarene Univ. v. Burwell*, the government informed the Court that
*certiorari* in an appropriate case is now warranted in order to resolve
the split created by the recent Eighth Circuit decisions.

As expected, the government argues that the most suitable vehicle for the
Court's review is Case No. 14-1505

, *Roman Catholic Archbishop of Washington v. Burwell.  *As I explained
earlier
,
and as the government elaborates in its brief

today,
the*Roman Catholic Archbishop *petition is the best candidate for
*cert. *because
of several considerations, including that:

-- The case was decided on the merits (cross-motions for summary judgment),
not on a motion for preliminary relief.

-- The petitioners present the full range of insurance arrangements that
have given rise to RFRA claims in the nonprofit context, including insured
plans, self-insured plans, and self-insured church plans.  (As the opinions
in the recent Tenth Circuit case demonstrate, the RFRA analysis is very
different with respect to each distinct sort of plan.)  This petition also
involves both employee and student plans.

-- The petitioners object to the entire range of the 18 covered
contraception methods, not only the four at issue in *Hobby Lobby* and
other cases.

-- Judge Pillard's two opinions in favor of the government are very
thorough (and she addressed the statutory claim, as well).  The *en
banc* petition
in the case also prompted two distinct dissenting opinions, by Judges Brown
and Kavanaugh, which differ from one another in important respects.

-- Most importantly, the D.C. court of appeals, unlike the other courts of
appeals thus far, squarely and thoroughly addressed both the
substantial-burden and so-called "strict scrutiny" components of RFRA.

Moreover, the *Roman Catholic Archbishop* petitioners, represented by Noel
Francisco of Jones Day, have honed their arguments, especially on the
"substantial burden" question, to eliminate many that are easily countered
(including most of those I discuss here
)
and to emphasize those that are most likely to engage the Court.  (For what
it's worth, I have offered some preliminary thoughts on those arguments in
the final sections of this post
,
beginning with the section entitled "Substantial Burdens and Complicity.")

Some of the other petitions also have one or more of these virtues; but no
other has them all.

The Court originally was scheduled to consider some of the petitions--those
that are fully briefed--at its "long" conference tomorrow.  Last week,
however, it postponed consideration of those petitions,