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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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October 13, 2014

Supreme Court Inmate Beard Case Illustrates True Purpose Of Federal Free Exercise Laws

Last week, the U.S. Supreme Court heard arguments in a case (Holt v. Hobbs) brought by an observant Muslim inmate challenging an Arkansas Department of Corrections (“DOC”) policy barring beards worn for religious reasons.  ADL had joined a friend-of-the-court-brief filed by a coalition of religious organizations in support of the inmate.   Given the facts of the case, the questions and answers at oral argument, and the Court’s overly broad reading of a federal law similar to the one at issue in this case, there likely are five justices who will side with the inmate.holt-v-hobbs

Forty state prison systems allow inmates to wear beards without limitation, and another three allow beards with some limitations.  But the DOC prohibits inmates from wearing half-inch beards for religious reasons.

The inmate – Gregory Holt – challenged the beard policy under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).   It is sister legislation to the Religious Freedom Restoration Act (“RFRA”), the law at issue in the troubling Hobby Lobby decision where the Court found that the Affordable Care Act’s contraception mandate “substantially” burdened the religious exercise of a for-profit corporation.  Both statutes apply strict scrutiny – the most robust constitutional standard – when neutral laws or government rules significantly burden religious exercise.

At the argument, DOC’s attorney justified the beard policy based on prisoner misidentification and hidden contraband concerns.  But he could not cite to an example of either.  The attorney also had difficulty explaining why the Court should give deference to the policy when inmates are permitted to have quarter-inch beards for medical reasons, wear their hair to the middle of the neck, and grow Afros without limitation, all of which arguably could pose the same concerns.

This case reflects the true purpose of both RLUIPA and RFRA: to shield religion from government burdens – not detrimentally imposing religious beliefs on others as was the case in Hobby Lobby.  Based on DOC’s failure to show a material effect on prison security, the Court should find in favor of Mr. Holt.  Allowing him to wear a short beard upholds his religious liberty without imposing his faith on or causing harm to others.

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