On the October Docket: Sequels to court's cases over mandate, other topics

Between cases already on the Supreme Court's docket for the 2015-2016 term and some of the appeals thought likely to be accepted for review, it might look like the justices have taken up Hollywood's love of sequels to blockbusters.

Among issues followed by the Catholic legal community, the contraceptive mandate in the Affordable Care Act is likely to be back, for one major sequel. Also making return outings in the term opening Oct. 5 are cases involving the details of the death penalty—a perennial favorite in the court-watching community—and state laws intended to limit abortions.

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There is not yet another case on the docket about the contraceptive mandate of the ACA, but, to continue the Hollywood analogy, the elements are in preproduction.

A bit over a year after the court ruled that certain for-profit employers are entitled to some sort of exemption from the federal requirement to provide contraceptive coverage in employee health insurance, legal observers expect a similar challenge by nonprofit employers to be back on the calendar.

That ruling in favor of the Hobby Lobby arts and crafts chain applied only to closely held for-profit employers whose owners' have religious objections to various forms of contraception. In the ensuing months, a second wave of rulings involving nonprofit faith-based organizations has flowed from the U.S. Circuit Courts of Appeal.

Prominent among the parties who sued over the mandate are the Little Sisters of the Poor, a Catholic religious order that operates nursing homes and other long-term care centers, several Catholic or Christian colleges and universities, and entities that provide social services.

The federal rules for how the ACA is implemented provide an automatic exemption from the contraceptive insurance requirement to religious institutions such as churches and dioceses that are primarily engaged in inculcating the faith and that primarily employ members of the faith. Other faith-based entities that do not meet that standard also can opt out of providing contraceptive coverage by notifying the government, which then hands off the responsibility to third-party administrators at no cost to the employers.

Seven of the federal appeals courts have said the opt-out system, known as an accommodation, does not pose a burden on religion.

On Sept. 17, the 8th U.S. Circuit Court ruled the other way, saying two Christian colleges were substantially burdened by the process of the accommodation. That ruling set up what is known as a conflict between the circuits. The Supreme Court often will not wade into a legal matter unless there is a difference of opinion among federal appeals courts. 

At a Sept. 22 briefing for the press about the upcoming term sponsored by Georgetown University's Supreme Court Institute, Georgetown law professor Marty Lederman and attorney Erin Murphy, a partner in the Bancroft law firm, agreed that it's only a matter of time before the nonprofit situation hits the docket.

Murphy, whose firm represents several of the religious organizations that have sued over the mandate, said that whatever case the court uses to wade into the issue, it likely will be settled on the basis of whether the contraceptive requirement imposes a substantial religious burden, as outlined in the Religious Freedom Restoration Act. She said one the challenges, by the Little Sisters of the Poor, poses the additional question of whether the mandate is constitutional, but she thinks the court is unlikely to rule on that basis.

Murphy said she anticipated it would take a few weeks before the court added a mandate case to its docket, after deadlines for the parties in the legal challenges to submit their legal briefs.

Lederman predicted that the federal government would win a mandate case on the basis of there not being a substantial burden on religious rights. He also said he thinks the case the Supreme Court will take is the one from the District of Columbia Circuit, filed by the Archdiocese of Washington on behalf of The Catholic University of America, Washington, and Thomas Aquinas College in Santa Paula, California, which joined in the suit two years ago.

"I expect the case taken will be the Roman Catholic Archbishop of Washington, D.C., v. Burwell, which is pretty dramatic," Lederman said, noting that the archdiocese itself is exempt, but is the named plaintiff for technical reasons. 

But before any of those cases are on the calendar, other sequels will come to the court. On the heels of last term's ruling that upheld Oklahoma's protocol for carrying out executions, there are already a handful of cases to be heard that consider other aspects of capital punishment.

Just two days after the term opens Oct. 5, the court has a full day of cases out of Kansas, considering the state's requirements for imposing a death sentence. At issue is the question of whether juries charged with considering capital case must be given certain instructions about mitigating circumstances.

The linked cases, involving the death sentences of brothers who were convicted of brutal murders, are just two of several times the court will face constitutional questions about cruel and unusual punishment, which is prohibited under the Eighth Amendment. Other sentencing cases involving capital punishment will be heard Oct. 13, weighing Florida's death penalty approach, and Nov. 2, over race discrimination in a Georgia death penalty case. 

And, in the category of coming attractions not yet on the schedule, at the Georgetown briefing Supreme Court Institute executive director Irv Gornstein predicted the court will likely take up a challenge to Texas laws governing abortion clinics.

In June the court temporarily blocked new requirements that abortion clinics meet the same standards as ambulatory surgical centers, pending legal challenges. Other provisions requiring abortion doctors to have admitting privileges at nearby hospitals and prohibiting abortion after 20 weeks gestation were not affected.

The 5th U.S. Circuit Court of Appeals upheld the laws earlier in June.

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