Analysis Law and Policy

Has the Affordable Care Act’s Contraception Benefit Been Saved?

Jessica Mason Pieklo

In a key win for the Obama administration, D.C. Circuit Court of Appeals Judge Nina Pillard authored an opinion that should put to rest any remaining legal threats to the contraception benefit.

Nina Pillard, as a professor at Georgetown Law School, argued that access to contraception and abortion is an important part of ensuring gender equality. As a litigator, she argued, and won, the critically important cases United States v. Virginia, which opened the Virginia Military Institute to women, and Nevada Department of Human Resources v. Hibbs, which successfully defended the Family and Medical Leave Act against claims it was unconstitutional.

And in Priests For Life v. HHS, she authored the judicial opinion that might just save the contraception benefit in the Affordable Care Act (ACA)—a benefit long fought by religious conservatives opposed to the use of contraception and intent on blocking contraceptive access at every point.

Pillard wrote for a panel of judges that unanimously rejected claims brought by Priests for Life and other religiously affiliated nonprofits that the accommodation process for such nonprofits to avoid complying with the ACA’s contraception benefit burdened their religious rights. Her opinion is 85 pages of the clearest and most detailed defense of the contraceptive coverage requirement since Supreme Court Justice Ruth Bader Ginsburg’s dissent in last summer’s Hobby Lobby case.

The questions before Pillard and her colleagues on the D.C. Circuit Court of Appeals in Priests for Life were exactly those that were left unanswered by the Supreme Court in its decision in Hobby Lobby and its interim order in the Wheaton College case.

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In Hobby Lobby, the conservatives on the Roberts Court ruled that the contraception coverage requirement in the ACA violated Hobby Lobby’s religious rights under the Religious Freedom Restoration Act (RFRA). In coming to that conclusion, the conservative justices, and in particular Justice Anthony Kennedy, leaned heavily on the fact that the Obama administration had crafted an accommodation process for some entities but did not make that accommodation available for Hobby Lobby.

While the Hobby Lobby decision was a defeat for the administration and the contraception benefit, the silver lining for reproductive health advocates appeared to be that the conservatives on the Roberts Court at least supported the accommodation, which suggested the core of the benefit would remain intact, even if the Roberts Court had managed to carve out a huge piece of it.

But leave it to the conservatives on the Roberts Court to dash progressives’ hopes as soon as they’ve been raised.

With the ink barely dry on the Hobby Lobby opinion, conservatives erased any evidence of a measured approach to contraception benefit and ruled in Wheaton College—a case challenging the accommodation to the benefit for religiously affiliated nonprofits—that the accommodation itself was also likely a RFRA violation. That called into doubt the legal footing of the entire accommodation process.

If conservatives on the Roberts Court left open the question of whether they would accept the accommodation post-Wheaton College, Pillard’s opinion in Priests for Life presses them for an answer. Specifically, Pillard’s opinion starts with a clear, concise summary of the coverage benefit under the ACA, including the accommodation available to religiously affiliated non-profits.

She details the steps businesses like Priests for Life must take to avail themselves of the accommodation and explains how third parties step in to make sure both the objecting organizations have no obligations to provide contraception coverage once the administration has been notified of their objections, and that access to contraception is seamless for employees and students who need it.

It’s not easy to write clearly about insurance regulations, but Pillard does just that. In the face of a campaign against the contraception benefit that is built on misinformation—both in how the benefit works and in the court’s role in evaluating religious objections to it—the opinion is an almost radical act of jurisprudence.

Pillard and her colleagues do the tough work of judging here, something that feels almost brave compared to the willingness by many lawmakers and judges to simply roll over lest they be accused of persecuting the religious right.

“Accepting the sincerity of Plaintiffs’ beliefs, however, does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious exercise, and to distinguish Plaintiffs’ duties from obligations imposed, not on them, but on insurers and [third party administrators],” Pillard wrote. “Whether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact.”

What happens when the court takes the time to actually evaluate the myriad claims by groups like Priests for Life? The claims fall apart.

“Plaintiffs’ opposition to the consequences of the ACA’s Women’s Health Amendment, even with the accommodation, amounts to an objection to the regulations’ requirement that third parties provide to Plaintiffs’ beneficiaries products and services that Plaintiffs believe are sinful,” Pillard wrote. “But RFRA does not grant Plaintiffs a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties.”

Pillard laying bare the true nature of the attacks on the accommodation is refreshing. But where Pillard’s opinion matters most is with regard to those open questions left from last summer’s Wheaton College interim order. Here she makes it clear there’s no justifiable reason for the Roberts Court to undermine the accommodation—but just to be sure she offers up an analytical road map with two important markers for Justice Kennedy, the likely swing-vote, to follow.

The first, and perhaps most important marker Pillard leaves for the conservatives on the Roberts Court is the issue of the government’s interest in the contraception benefit. The conservative majority, in its Hobby Lobby opinion, assumed without ruling that the government had asserted a compelling interest in making contraception coverage widely available. In legal terms, that part of the decision is called dicta, which means it was basically just words and has no binding effect in future cases. The Roberts Court didn’t actually rule that the Obama administration has a compelling interest in making contraception coverage widely available, which leaves open the possibility that in a future case they could change their minds.

The Supreme Court majority in Hobby Lobby characterized the government’s interests in “promoting public health and gender equality” as “broadly framed” and noted that RFRA “contemplates a more focused inquiry.”

Pillard’s opinion gives them that more focused inquiry. Noting first that “[t]he government’s asserted compelling interest here, writ large, is in a sustainable system of taxes and subsidies under the ACA to advance public health,” Pillard goes on to provide eight pages of analysis as to what, specifically, is the government’s compelling interest in providing contraception coverage under the ACA; she includes citations to Congressional testimony, public health findings regarding the widespread benefits of available contraception and its susceptibility to even seemingly trivial disruptions, and other federal statutes like the Family and Medical Leave Act and the Pregnancy Discrimination Act.

That is what makes Pillard’s opinion in Priests for Life so important: not just the outcome that will inevitably be appealed, but the road map she drafted—a truth not lost on Obamacare opponents.

“This decision by the D.C. Circuit, a court that was recently packed by Obama through Harry Reid’s nuclear option, totally disregards the meaning of material cooperation as our Church teaches it,” said Robert Muise of the American Freedom Law Center, which represents Priests for Life in this case, in a statement. “No doubt, contraception is a sacrament of the secular left, and this decision, which was authored by one of the recent Obama-appointed judges, is a tribute to it.”

Amid a mixed record on judicial nominations, the fact that the Obama administration fought so hard for Pillard’s appointment stands out as an example of hardline politics by an administration normally plagued by political under-reach.

The importance of Pillard’s appointment has become clear. No other judge could have written that opinion, and at such a critical moment in the fight over the ACA, there is probably no better judge to have done so than Nina Pillard.

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