Last week, the U.S. Supreme Court agreed to hear the consolidated appeals of seven cases involving employer provision of birth control under the Affordable Care Act. In its 2013 Hobby Lobby case, the Court concluded that the ACA’s birth control mandate violated the rights of certain corporations to exercise of religious freedom under the First Amendment and federal statute. That decision imposed a strict level of review on federal mandates for birth control.

In response to some of the concerns expressed by employers in the Hobby Lobby litigation, the Department of Health and Human Services previously adopted regulations allowing certain non-profit religious employers to opt out of directly providing birth control to employees. Instead, those employers could file for the exemption, and have the insurance carrier directly provide birth control to the employees. Based on these rules and the Hobby Lobby decision, a number of religious non-profits challenged the DHS rules, contending that they illegally burden their rights to religious freedom.

These claims have been rejected in all federal appellate courts to consider them, with the exception of the Eighth Circuit. The Supreme Court will consider whether the DHS accommodation and the obligation to affirmatively seek an exception to the ACA rules create an unreasonable burden on religious expression. If the challenging employers prevail on their claims, the government would be required to develop a less burdensome alternative or forego the birth control requirement for those employers.