Contraceptive mandate heading to Supreme Court?

Pro-abortion and birth control protesters demonstrate outside the U.S. Supreme Court in Washington on June 30, 2014. In one of the most closely watched cases of the year, the court weighed whether for/ REUTERS

Religious nonprofit groups seeking to be exempted from the health care reform law's contraceptive mandate are closer to having their arguments heard by the U.S. Supreme Court following two appeals court rulings.

In both cases, a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis last week unanimously upheld rulings by lower courts. The previous lower court rulings temporarily bar the government from forcing religiously affiliated schools, hospital systems and other charities to offer their employees cost-free prescription contraceptives or, under an religious charity accommodation finalized in July, pass the obligation to their health insurers or third-party health plan administrators.

The rulings are the first by a federal appeals court holding that the Obama administration's accommodation for religious nonprofits violates the federal Religious Freedom Restoration Act.

Previously, seven other appeals courts ruled in the federal government's favor, finding that the accommodation does not conflict with the religious freedom law because the nonprofit entities are to notify the government of their objections and not directly provide the coverage.

The split that now has developed greatly increases chances that the Supreme Court will take the case in its coming term that starts in October.

Plaintiffs in the seven cases previously decided by appeals courts have already petitioned the high court for a hearing.

Though the Department of Health and Human Services has not yet indicated whether it will appeal the latest rulings to the Supreme Court or seek an en banc review by full 8th Circuit, legal experts say this could be the ideal opportunity to get the case before the court.

“I think this makes for a good test, particularly when you look at the grounds on which the 8th Circuit panel made its decisions,” said James Napoli, a Washington-based partner at Seyfarth Shaw L.L.P. “The court seems to be saying that courts need to accept as true the assertion by the plaintiffs that what they're being asked to do under the accommodation really does violate or substantially burden their religious beliefs. Other courts have said that the mere allegation of a substantial burden isn't enough, but this court seems to think that it is enough.”