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November 10, 2015

Supreme Court to Hear Second Contraception Mandate Challenge

Last week, the U.S. Supreme Court agreed to hear a second challenge to the Affordable Care Act’s (“ACA”) contraception mandate.   This time, multiple religiously-affiliated groups are claiming that the law’s minimal requirements for opting out of the mandate violate their religious freedom rights.  Following its own recent precedent, the Court should reject these claims.

The ACA requires employer-provided health insur­ance to cover all FDA– approved pre­scrip­tion con­tra­cep­tion at no cost to employ­ees.  Houses of wor­ship and other sec­tar­ian insti­tu­tions are wholly exempted from this require­ment.  Religiously-affiliated orga­ni­za­tions may opt out of the con­tra­cep­tive man­date by merely sub­mit­ting a one-page form or letter to the Depart­ment of Health and Human Ser­vices (“HHS”).  In that cir­cum­stance, the health insur­ance com­pany or a third-party admin­is­tra­tor pays for and admin­is­ters the coverage.


Supreme CourtDespite this nom­i­nal require­ment, a number of religiously-affiliated groups filed lawsuits claiming that this religious accommodation provision “sub­stan­tially bur­dens” their reli­gious exer­cise in vio­la­tion of federal Religious Freedom Restoration Act (“RFRA”) because it makes them “con­duits” for pro­vid­ing con­tra­cep­tion cov­er­age.   Last week, the U.S. Supreme Court agreed to hear seven of these cases in one consolidated appeal.

Seven of eight U.S. Courts Appeals (lower federal courts) have already rejected such claims, including the influential D.C. Circuit.  It found that the filing of the form or letter excuses plain­tiffs “… from play­ing any role in the pro­vi­sion of con­tra­cep­tion ser­vices, and they remain free to con­demn con­tra­cep­tion in the clear­est terms.”  The Court fur­ther deter­mined that the ACA  — not the opt-out notice – oblig­ates health insur­ance com­pa­nies or HHS through third-party admin­is­tra­tors to pro­vide con­tra­cep­tion cov­er­age.  As a result, it cor­rectly con­cluded that:

Reli­gious objec­tors do not suf­fer sub­stan­tial bur­dens under RFRA where the only harm to them is that they sin­cerely feel aggrieved by their inabil­ity to pre­vent what other peo­ple do to ful­fill reg­u­la­tory objec­tives after they opt out.  They have no RFRA right to be free from the unease, or even anguish, of know­ing that third par­ties are legally priv­i­leged or oblig­ated to act in ways their reli­gion abhors.

Although these seven decisions should persuade the U.S. Supreme Court, they are not binding.  But language in the Court’s own highly problematic June 2015 Hobby Lobby decision should dictate the outcome this time.  In Hobby Lobby, the Court reached the troubling conclusion that for the purposes of RFRA it could not distinguish between a for-profit close corporation versus a religiously-affiliated group having a religious objection to the contraception mandate.  As a result, it ruled that like non-profit religiously-affiliated groups, such close corporations could opt out of providing contraception coverage under the mandate.  The Court, however, effectively ruled that the opt-out provision was permissible under RFRA, stating that it “… constitutes an alternative that achieves all the Government’s aims while providing greater respect for religious liberty.”

Although ADL and others strongly disagreed with the Court applying RFRA to for-profit corporations by equating them with non-profits, consistency would dictate that it reject religiously-affiliated groups’ challenges to the opt-out provision.  To do otherwise would be contradictory and mean that any burden on religion – no matter how trivial – could be used by religiously-affiliated groups as a vehicle to opt out of federal law or impose their religious beliefs on others.

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November 20, 2014

Good D.C. Circuit Ruling on ACA Contraception Mandate Opt-Out Rule

The influential U.S. Court of Appeals for the District of Columbia recently rejected legal claims by religious nonprofits asserting that even the minimal requirements for opting out of the Affordable Care Act’s (ACA) contraception mandate violate their religious freedom rights.

DC Circuit Court of Appeals Building

DC Circuit Court of Appeals Building

The ACA requires employer-provided health insurance to cover all FDA- approved prescription contraception at no cost to employees.  Houses of worship and other sectarian institutions are wholly exempted from this requirement.  And religiously-affiliated organizations may opt out of the contraceptive mandate by merely submitting a one-page form or otherwise providing notice to its health plan issuer or the Department of Health and Human Services (HHS).  In that circumstance, the health insurance company or a third-party administrator pays for and administers the coverage.

Despite this nominal requirement, plaintiffs in the case called Priests for Life v. U.S. Department of Health and Human Services claim that it “substantially burdens” their religious exercise in violation of the federal Religious Freedom Restoration Act (“RFRA”).  They assert that the opt-out notice requirement “triggers” substitute coverage and thereby – makes them “conduits” for providing contraception coverage in violation of their religious beliefs.

The Court soundly rejected this claim.  It found that the filing of the form excuses plaintiffs “… from playing any role in the provision of contraception services, and they remain free to condemn contraception in the clearest terms.”  And it further determined that the ACA  – not the opt-out notice -obligates health insurance companies or HHS through third-party administrators to provide contraception coverage.  As a result, the Court correctly concluded that:

Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people do to fulfill regulatory objectives after they opt out.  They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.

The Court also determined that the contraception requirement advances the compelling interests of “public health and gender equality” and the opt-out rule is the least restrictive way to achieve these  interests because it “requires as little as it can from the objectors while still serving the government’s compelling state interests.”

The Court’s decision appropriately references the reality of our nation’s religiously diverse workforce, stating “[r]eligious nonprofits like Plaintiff organizations employ millions of Americans — including individuals who do not share their beliefs.”   Given this diversity and our pluralistic democracy, the Court’s decision strikes the right balance between religious liberty and civil rights.

Unlike the U.S. Supreme Court’s disturbing Hobby Lobby decision,  the Court in this case properly recognized the true legislative intent of RFRA: to shield to religious practice — not to serve as a sword to impose religious beliefs on others.

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July 11, 2014

Order in Wheaton College Case Raises More Concerns About Hobby Lobby

On the heels of the deeply troubling and controversial Hobby Lobby decision, the Supreme Court on July 3rd issued another disturbing order in a challenge to the Affordable Care Act (“ACA”) contraception mandate.  This order, coupled with the Hobby Lobby decision, indicates that the Court may be effectively striking a central requirement from an important religious liberty law – the federal Religious Freedom Restoration Act (“RFRA”).  That requirement is that someone claiming protection under the law must show that his or her religious practice was substantially burdened.supreme-court-civil-rights

In Wheaton College v. Burwell, a religiously-affiliated college that opposes certain forms of birth control is challenging the process by which they indicate to the government that they qualify for an exception to the contraception mandate. This exception allows religious, non-profit employers such as the college, to opt out of providing employee health insurance that covers contraception.  But, ironically, the college claims that applying for this exception (which involves completing a two-page government form) violates its rights under RFRA, which was the same law that for-profit corporations successfully used to challenge the mandate in the Hobby Lobby case.  In the July 3 order, the Court employed a rarely used legal mechanism to temporarily block implementation of the exception while the case is still under appeal.

RFRA requires the federal government to demonstrate the most stringent constitutional standard when it imposes a “substantial” burden on a person’s religious exercise.   As ADL pointed out in its amicus (friend-of-the-court) brief to the Supreme Court in the Hobby Lobby case, RFRA’s use of the term substantial is not an accident, but was included to make clear that the statute’s strong protections could not be triggered by incidental or minor burdens on religion.   In fact, the Senate Report on RFRA states that Congress added the term so that the law “would not require [a compelling government interest] for every government action that may have some incidental effect on religious institutions.”

Based on this report and other precedent, the brief ADL joined in Hobby Lobby argued that the secular, for-profit corporate plaintiffs were not eligible for RFRA’s protections because, among other reasons, any burden on their religious exercise was incidental and not substantial.  Unfortunately, the Court did not agree with ADL’s argument.  It ruled that application of the contraception mandate to the corporations did substantially burden their religious exercise and violated RFRA.

The Court’s subsequent action in the Wheaton College case rendered this misguided conclusion even more ominous.

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