Objectors to the Obama administration’s birth control benefit continued their losing streak Wednesday as a federal appeals court in Pennsylvania became the fourth to reject claims by nonprofit employers that the process for opting out of providing contraception coverage to its students and employees is a substantial burden on its religious beliefs.
So far not a single court of appeals has ruled in favor of nonprofits challenging the Obama administration’s birth control benefit, while decisions are pending in at least three other federal courts of appeals on similar challenges.
Like the other nonprofit employers challenging the benefit across the country, the Geneva College plaintiffs argue that the task of completing the government’s form that self-certifies them as religious employers and eligible for an accommodation “triggers” or “facilitates” their employees from eventually getting contraceptive coverage elsewhere.
That, according to the plaintiffs, would make the employer complicit in what it believes to be a sinful act.
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The Third Circuit on Wednesday flatly rejected the claim that the nonprofit’s religious freedom was substantially burdened by allowing the government to provide contraceptive coverage. “Far from ‘triggering’ the provision of contraceptive coverage to the appellees’ employees and students,” the court wrote, the government’s opt-out form “totally removes the appellees from providing those services.”
“[The opt-out form] does not entitle [the appellees] to control their employees’ relationships with other entities willing to provide health insurance coverage to which the employees are legally entitled,” the Third Circuit wrote.
Importantly, the Third Circuit’s opinion makes it clear that if plaintiffs are going to claim the accommodation burdens their religious beliefs, they must be able to show that burden is substantial in order to prevail.
“Substantial burden has been a real key issue in the accommodation cases,” Leila Abolfazli, senior counsel in the Health and Reproductive Rights Program at the National Women’s Law Center, told Rewire. “The other side has been arguing that the courts must just accept their conclusion that it is a substantial burden, and in each of these four decisions the circuit courts have pushed back and said, ‘No, that’s actually a legal decision of whether or not this is a substantial burden.’’
As the Third Circuit explained Wednesday, that “substantial burden” analysis is not, as conservatives claim, the same thing as judging the reasonableness of a plaintiffs’ religious beliefs.
“While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees’ religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees’ religious exercise,” the court wrote. “This involves an assessment of how the regulatory measure actually works. Indeed, how else are we to decide whether the appellees’ religious exercise is substantially burdened?”
Last year during the frenzy of for-profit businesses challenging the contraception benefit, a trip to the Roberts Court was all but certain. This year, the path to the Supreme Court for nonprofit challengers is not quite as clear.
“The decisions that have come out so far have been pretty strong on their language rejecting these challenges,” Abolfazili said.
The unanimous decisions at the appellate level rejecting the accommodation challenges means that for now there’s no disagreement for the Supreme Court to settle. The consensus is the accommodation process substantially burdens nothing.
That could change as several other appellate challenges are pending, including the Tenth Circuit Court of Appeals, which is the federal circuit that gave the Roberts Court the Hobby Lobby case.
Another factor that could play into whether or when the accommodation goes before the Roberts Court is the fact that the government has proposed extending the accommodation to closely held for-profits in response to the Hobby Lobby decision. It is possible, Abolfazili explained, that the Court would want to wait until then to step in.
“It’s a question of if they’ll want to finally settle the land and make a final call about the accommodation.”