Mills Fleming Op Ed: Supreme Court Vacancy Creates Uncertain Future

by T. Mills Fleming, special to the Savannah Morning News

T. Mills FlemingOn Feb. 18, the Eleventh Circuit Court of Appeals (which has jurisdiction over Florida, Georgia and Alabama) joined seven other federal appeals courts in rejecting the latest challenge to the Affordable Care Act’s (ACA) contraceptive coverage accommodation.

The case, styled as Eternal Word Television Network, Inc. v. Secretary of the U.S. Department of Health and Human Servs., No. 14-12696, included as plaintiffs the Roman Catholic Archdiocese of Atlanta and the Diocese of Savannah, their respective bishops (including Bishop Gregory Hartmayer from Savannah) and other Catholic charities.

Under the ACA’s contraceptive mandate, employers are required to provide their employees with health insurance that includes no-cost access to certain forms of birth control. Nonprofits which are affiliated with religious organizations (like hospitals, schools and religious charities) can choose to opt out of this requirement by notifying their insurers (or the government), and the insurer must then arrange to pay for the contraceptive coverage separately. These nonprofits say that even with this opt-out accommodation, the notification requirement serves as a “trigger” to providing contraceptive coverage which, in their view, makes them complicit in committing conduct that violates their religious beliefs.

The Eleventh Circuit disagreed and held that the ACA’s accommodation process does not amount to a substantial burden on their exercise of religion under the 1993 federal law known as the Religious Freedom Restoration Act (which became law during the Clinton administration).

Because the Roman Catholic Archdiocese of Atlanta and the Diocese of Savannah served as plaintiffs in challenging the law, the Eleventh Circuit’s decision has both local and national importance. Here’s why:

The U.S. Supreme Court is scheduled to hear oral arguments on this very issue on March 23. However, the recent death of U.S. Supreme Court Justice Antonin Scalia, who chided previous Supreme Court decisions’ upholding the ACA as “pure applesauce” and “interpretive jiggery-pokery,” could leave this and other important healthcare cases in legal limbo.

In many of these controversial cases — particularly where religious freedom is involved — the Court has split 5-4 largely along ideological lines. Regardless of whether Justice Scalia was in the majority or the minority, his opinions were written with such persuasive and panoptical force that they became part of everyone’s lexicon of ideas and framed both public policy and political debate.

It is possible the Supreme Court could postpone hearing this case until a new justice replaces Scalia. How long this process will take is unknown and will depend not only on whom President Obama will nominate (which he is authorized to do under Article II, Section 2, Clause 2 of the U.S. Constitution) but also when the U.S. Senate will fulfill its constitutional obligation to provide “advice and consent” for the president’s nomination.

Adding to the uncertainty are election-year politics, and certain members of the Senate are being urged to block anyone nominated by the president.

If, on the other hand, the Court moves forward with hearing the case and comes to a 4-4 split, the lower court’s decision would remain in place, but only for the area of the country served by that circuit. This type of “no decision” leaves the law unsettled and could lead to different rules across the country.

The Eleventh Circuit stayed enforcement of the mandate and accommodation against the plaintiffs in the case involving the Diocese of Savannah pending the outcome of the Supreme Court’s decision. Therefore, a 4-4 vote by the Supreme Court would leave the Eleventh Circuit’s decision intact and make the ACA’s contraceptive mandate and accommodation process the law in Georgia.