Religious conservatives challenging the accommodation process for employers to opt out of the Affordable Care Act’s birth control benefit have lost yet another legal battle, this time in the conservative Fifth Circuit Court of Appeals.
A unanimous panel of judges on Monday ruled that the plaintiffs in East Texas Baptist University v. Burwell, a consolidated group of cases involving religiously affiliated employers who object to providing health insurance coverage for some or all forms of contraception, were not substantially burdened by completing an opt-out form that triggers third party contraceptive coverage for employees who want it.
The plaintiffs in East Texas Baptist University argue that the task of completing the government’s form that self-certifies them as religious employers—and eligible for an accommodation to the benefit—“triggers” or “facilitates” the ability of their employees to get contraceptive coverage elsewhere.
That, the plaintiffs argue, makes them complicit in what they believe to be a sinful act: supporting contraception generally.
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On Monday the Fifth Circuit joined the Third, Seventh, and D.C. Circuits in flatly rejecting that argument.
“Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives,” the court wrote. “The acts that violate their faith are the acts of the government, insurers, and third-party administrators, but RFRA does not entitle them to block third parties from engaging in conduct with which they disagree.”
So far not a single federal court of appeals has ruled in favor of the nonprofit organizations challenging the Obama administration’s birth control benefit. Despite the unanimity in the federal appeals courts that the accommodation process does not substantially burden any religious rights, Supreme Court Justice Samuel Alito has revived similar challenges from other religiously affiliated nonprofits, ordering the appeals courts to reconsider their rulings.
The Seventh Circuit Court of Appeals in May issued the first ruling to come from those rehearings in the University of Notre Dame’s challenge to the accommodation process, forcefully rejecting arguments that employers have the right to block their employees from accessing contraceptive coverage if they want it.
“[A]lthough Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs,” the Seventh Circuit wrote in May.
Meanwhile the D.C. Circuit Court of Appeals in May refused to rehear claims by Priests for Life that the accommodation process unduly burdened their religious rights. Priests for Life has now asked the Roberts Court to step in.