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November 20, 2014 0

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 0

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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July 14, 2014 0

Hobby Lobby Elicits Varied Editorial Responses

On June 30, the Supreme Court in Bur­well v. Hobby Lobby affirmed the right of family-owned com­pa­nies to deny employ­ees, based on the reli­gious beliefs of the employer, health insur­ance cov­er­age for con­tra­cep­tives. As Pro­fes­sor Erwin Chemerin­sky warned at the ADL’s 2014 Supreme Court Review, the deci­sion could have far-reaching impli­ca­tions for work­ers’ civil and reli­gious rights.newspapers-hobby-lobby

Edi­to­r­ial boards for the nations’ top news­pa­pers opposed the land­mark deci­sion by a 2–1 ratio. Of the fifty news­pa­pers with the high­est cir­cu­la­tion, twenty-five dis­agreed with the Supreme Court’s posi­tion in Hobby Lobby. Thir­teen sup­ported the deci­sion. Twelve offered no opin­ion on the topic.

Of those peri­od­i­cals that opposed the deci­sion, some objected to the Supreme Court’s increas­ing will­ing­ness to grant legal pro­tec­tions to cor­po­ra­tions that tra­di­tion­ally have been reserved for human beings. The Cleve­land Plain Dealer insisted that “cor­po­ra­tions are not ‘per­sons’ who think, breathe and exer­cise first-amendment rights or prac­tice reli­gious beliefs,” and warned that “[t]reating them as if they are will inevitably nar­row free­doms for oth­ers.” The Detroit Free Press called the deci­sion an expan­sion of “the majority’s already inflated notion of cor­po­rate personhood.”

Other oppo­nents view the deci­sion as a set­back for repro­duc­tive rights. The San Jose Mer­cury News crit­i­cized the Court for fail­ing to rec­og­nize the impor­tance of access to con­tra­cep­tives for women’s rights: “World­wide, the sin­gle great­est fac­tor in lift­ing soci­eties out of poverty is women gain­ing the abil­ity to con­trol when they become preg­nant.” The Min­neapo­lis Star Tri­bunesaid that “allow­ing an employer to choose which type of con­tra­cep­tion mer­its cov­er­age reverts to an ear­lier, darker age in atti­tudes about women’s role in reproduction.”

Still oth­ers fear that the deci­sion opens the door to fur­ther ero­sion indi­vid­u­als’ rights and gov­ern­ment entan­gle­ment in the exer­cise of reli­gion. The New York Times called the deci­sion “a rad­i­cal depar­ture from the court’s his­tory of resist­ing claims for reli­gious exemp­tions from neu­tral laws of gen­eral applic­a­bil­ity when the exemp­tions would hurt other peo­ple.” USA Today warned of the “deeply dis­turb­ing propo­si­tion” that the deci­sion could force the gov­ern­ment to judge “whether a business’s reli­gious prin­ci­ples merit spe­cial treat­ment that its more sec­u­lar com­peti­tors don’t get.” The Wash­ing­ton Post urged Con­gress to limit the dam­age of the deci­sion by leg­isla­tively over­turn­ing it.

Sup­port­ers, how­ever, hail Hobby Lobby as a bold recog­ni­tion of reli­gious lib­erty. The Wall Street Jour­nal called the deci­sion “an impor­tant vin­di­ca­tion of reli­gious lib­erty in this (still, bless­edly) con­sti­tu­tional repub­lic.” The New York Daily News cel­e­brated that Court’s con­clu­sion that “own­ers of closely held com­pa­nies should not be forced to sac­ri­fice their reli­gious lib­erty sim­ply because they incor­po­rated to do business.”

How­ever one views the Court’s deci­sion, Hobby Lobby clearly touches on many polit­i­cal and legal fault lines. The ADL believes that the deci­sion threat­ens many anti-discrimination laws and will work to limit its impact.

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