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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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October 23, 2014

HHS Issues Overly-Broad Draft Rule Following Hobby Lobby

The U.S. Supreme Court’s deeply-troubling decision in Burwell v. Hobby Lobby allows certain for-profit, corporations to opt out of the Affordable Care Act’s (ACA) contraception mandate based on religious objections.  In in an effort to comply with the decision, the U.S. Department of Health and Human Services (“HHS”) issued a new proposed rule defining organizations and corporations eligible for religious accommodation similar to those already available to religious nonprofits.  ADL firmly believes that the proposed rule is too broad and recently submitted comments urging a more narrow definition of eligible organizations.  hs-issues-overly-broad-draft-hobby-lobby

The ACA requires employer-provided health insurance to include coverage for the full range of Food and Drug Administration (FDA)-approved contraceptives and health services. Recognizing that contraception implicates religious beliefs, HHS exempted houses of worship and other pervasively-religious employers from the contraception mandate.  It also accommodated religiously-affiliated nonprofits (including schools and hospitals) by creating a mechanism through which employees’ contraceptives are made available by third-party insurers without cost-sharing by the employer or the individuals accessing these services.

Notwithstanding these extraordinary accommodation efforts, owners of secular, for-profit corporations have filled dozens of lawsuits under the First Amendment and Religious Freedom Restoration Act (RFRA) asserting religious objections to the contraception mandate.  These cases culminated in the Supreme Court’s recent Hobby Lobby decision.  ADL joined an amicus (friend-of-the-court) brief to the Court in the case arguing that the connection between an employee’s private decision to utilize contraceptives made available under the ACA is so far removed from an employer (likely entirely unknown), it could not possibly meet the RFRA standard of imposing a “substantial burden” on the religious practices of the corporations’ owners.

However, the Supreme Court’s disturbing decision ruled that RFRA empowers certain private, closely-held corporations to impose their religious beliefs on employees by refusing to include contraceptive coverage in their employee health insurance plans.  Following this decision, HHS issued its proposed new rule for closely held, for-profit corporations – and asked for comments on how to define eligibility for this accommodation.

ADL firmly believes that every woman should have access to the full range of FDA-approved contraceptives, without additional costs.  Our comments on the proposed rule argue that a narrow definition of eligible organizations is necessary in order to limit the number of secular, for-profit owners who could impose their religious beliefs on their employees – and to limit overall litigation.  We also urged that closely-held corporations seeking to opt out of the contraception mandate be required to demonstrate that their religious objections are guided by sincerely-held religious beliefs documented in corporate charters, business practices, policies, and operations.

A final rule is expected in the next few months.

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