- The Washington Times - Monday, February 15, 2016

A Christian college in Pennsylvania could be forced to provide contraceptive health care coverage to its employees or else pay massive fines, but a school in Iowa would be shielded from Obamacare’s contraceptive mandate if the Supreme Court deadlocks, 4-4, in one of the major cases pending this term.

Justice Antonin Scalia’s death over the weekend has created myriad legal scenarios in the dozens of cases the court has yet to decide this session, particularly cases in which lower courts have disagreed and need the high court to referee.

With congressional Republicans vowing to block President Obama’s eventual pick to replace Scalia, an equally divided court would be forced to either relist deadlocked cases for argument during the next term or simply affirm the lower-court decisions under review. That option opens the door to uneven application of the law until an issue can find its way back to a full court.

“That’s one reason why having an eight-member court for this year and next year is so troubling,” said Brianne J. Gorod, senior counsel at the left-leaning Constitutional Accountability Center.

The biggest showdown pits the administration against religiously affiliated hospitals, charities or colleges that argue they should be exempt from the contraception mandate, an outgrowth of Obamacare that requires employers to cover 20 contraceptives approved by the Food and Drug Administration as part of their health care plans or pay hefty fines.

The nonprofits say an opt-out “accommodation” that the administration drafted doesn’t go far enough, leaving them complicit in providing drugs and services that conflict with their religious beliefs.

The 8th U.S. Circuit Court of Appeals shielded the nonprofits from the mandate, bucking seven other circuit courts that sided with the administration.

A deadlocked court that reaffirms the circuit rulings would force nonprofits such as Geneva College, a Christian school north of Pittsburgh, to pursue legal protection again from the lower courts if they want to stave off the mandate.

“Their choices are litigating other theories and then — if they lose — they would either comply or they would refuse to comply and face the consequences, which are the enormous fines,” said Gregory S. Baylor, senior counsel at the Alliance Defending Freedom, which represents Geneva and other plaintiffs challenging the regulation.

Yet some nonprofits, such as Dordt College in Iowa, would be OK for now because the 8th Circuit has sided with them.

Legal analysts it’s not unusual to have different legal treatment from one area to the next.

“States do things differently all the time,” said Holly Lynch, a bioethics analyst at Harvard Law School who closely tracks the contraception mandate debate.

On the other hand, she said, stakeholders usually expect federal law to be applied evenly across the nation.

Mr. Baylor said Alliance Defending Freedom clients and many other nonprofits that have sued the administration are shielded from the force of the mandate until the Supreme Court decides the issue — even if they lose at the circuit level. If the court lists the case for re-argument instead of affirming the circuits, he said, that protection should stay until after the full court can hear the case.

The Supreme Court is set to rule on a wide-ranging set of issues this term that have resulted in circuit splits, including how far prosecutors must go to prove insider trading and whether a U.S. Postal Service employee filed a lawsuit claiming racial discrimination and workplace retaliation in time. Five circuits said the clock started running when he resigned, and three others said it started after the last instance of discrimination.

However, legal analysts say the contraception dispute is the most prominent split before this court.

Two years ago, the justices shielded certain corporations from the birth control mandate, citing protections with the 1993 Religious Freedom Restoration Act.

The 5-4 ruling, driven by the court’s all-male conservative wing, forced the administration to draft an accommodation that mirrors an opt-out route for faith-based nonprofits, but those nonprofits asked the high court this year to look beyond the mandate and decide whether that compromise still poses an undue burden.

Some analysts, including experienced Supreme Court lawyer Tom Goldstein, say Justice Anthony M. Kennedy might be persuaded to join the liberal wing, producing a majority decision.

“Everything stays a mess until an eventual decision,” he said in an email. “But I think the administration is likely to win.”

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