Supreme Court to Hear Second Contraception Mandate Challenge

  • November 10, 2015

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 Court

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.