SCOTUS will hear another challenge to the contraception mandate in Zubik v. Burwell

Wednesday morning, President Obama’s lawyers will again attempt to convince the Supreme Court that requiring nonprofit religious organizations to acquire government permission to practice their faith unmolested doesn’t place a burden on the free exercise of religion. It may seem self-evident that forcing religious schools, hospitals, and nursing homes to seek special bureaucratic accommodations to freely observe their beliefs obviously creates such a burden. But the apparatchiks who enforce Obamacare’s contraception mandate disagree, and they have spent five years and untold millions in taxpayer dollars in an effort to bend organizations like Little Sisters of the Poor to their will. Thus, lawyers for seven such organizations whose petitions have been consolidated by the Court with a case called Zubik v. Burwell will appear before the justices to explain how the contraception mandate violates the Religious Freedom Restoration Act (RFRA), which requires government actions to follow certain rules designed to protect the free exercise of religion. Under RFRA, an action must involve a “compelling governmental interest” and use the “least restrictive means” of pursuing that interest if it “substantially burdens the free exercise of religion.” The petitioners will argue that the mandate does impose such a burden yet fails the “least restrictive means” test. The mandate’s failure to pass this test is what created the lower court disagreement that SCOTUS must resolve. The contraception mandate precipitated dozens of lawsuits against the government, and most of the federal appeals courts sided with the Obama administration. But in Dordt v. Burwell, the Eighth Circuit Court of Appeals ruled for the plaintiffs: “We conclude that, even assuming that the government’s interests in safeguarding public health and ensuring equal access to health care for women are compelling, the contraceptive mandate and accommodation process likely are not the least restrictive means of furthering those interests.” In other words, the mandate violates RFRA. More...