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.
Despite 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.