HHS Issues Overly-Broad Draft Rule Following Hobby Lobby

  • October 23, 2014

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.  


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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