Federal Appeals Court Brings Fight Over Contraception Accommodation Closer to Supreme Court

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Federal Appeals Court Brings Fight Over Contraception Accommodation Closer to Supreme Court

Jessica Mason Pieklo

A ruling Thursday that religiously affiliated nonprofits can avoid complying with the process for requesting an exemption to the Affordable Care Act's birth control benefit makes it more likely the Roberts Court will step in this fall.

The U.S. Eighth Circuit Court of Appeals ruled Thursday that the process for accommodating religious objections to the Affordable Care Act’s birth control benefit violates federal law. This makes it the first federal appeals court to rule against the Obama administration and increases the chances the United States Supreme Court will take up yet another legal challenge to the Affordable Care Act.

Under the ACA, religiously affiliated nonprofits that object to providing employees health insurance with contraception coverage can claim a religious exemption, either by filing a government form that is then sent to their insurers to initiate coverage for those employees that want it, or by filing a letter giving the federal government enough information about their insurers to allow the government to then arrange the coverage itself. Religiously affiliated nonprofits object to both methods, arguing that they “trigger” coverage for their employees and thus make the nonprofits complicit in the sin of providing access to contraception. Such action, they argue, violates their rights under the Religious Freedom Restoration Act (RFRA), a federal law designed to protect individual religious rights from excessively burdensome government action.

Until Thursday’s decision, not a single federal court accepted that argument, ruling instead that the process was a reasonable accommodation of both employee rights to equal benefits and employer objections to complying with the law.

The Eighth Circuit, however, said the process creates a “substantial burden,” on the groups’ religious rights in violation of RFRA. “When the government imposes a direct monetary penalty to coerce conduct that violates religious belief,” wrote the Eighth Circuit.

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Relying on the ruling in Hobby Lobby v. Burwell, the Supreme Court decision that held some secular, for-profit companies can avoid complying with the birth control benefit, the Eighth Circuit said once an employer raises a religious objection to the contraception benefit, the court must simply accept that the employer’s religious rights are burdened.

“As Hobby Lobby instructs, however, we must accept [the plaintiffs’] assertion that self-certification under the accommodation process—using either Form 700 or HHS Notice—would violate their sincerely held religious beliefs,” the court wrote.

The decision, if upheld, could leave employees in limbo with regard to accessing contraception coverage, since the federal government would be responsible for facilitating that coverage without any information from the religiously affiliated employer about its insurance provider or benefits plans. That means the government would have to seek that information out for each employee that needs contraception coverage.

“In allowing nonprofit organizations to block their employees from getting contraception from third parties, the Eighth Circuit has expanded RFRA in a manner that would make even Hobby Lobby blush,” Gregory Lipper, senior litigation counsel for Americans United for Separation of Church and State, said to Rewire. “Under this decision, literally anything can be a ‘substantial burden’ on religious exercise, and the regulations cannot survive strict scrutiny so long as somebody could imagine an alternative approach, no matter how unrealistic.”

“If upheld, this decision will harm both women’s health and religious liberty,” Lipper said.

Thursday’s decision creates a circuit-split, or a disagreement among the federal appeals courts as to a point of law. Circuit-splits are precisely the kind of disagreement the Supreme Court is designed to settle. Attorneys representing other religiously affiliated nonprofits challenging the accommodation have filed seven separate requests with the Roberts Court to take up the question of whether or not the accommodation process violates RFRA, but until Thursday there was no reason for the Court to do so.

Attorneys representing religiously affiliated nonprofits applauded the decision, urging the Roberts Court to intervene. “The government keeps telling the Supreme Court, ‘Move along, nothing important here,’ in hopes that the Court will ignore this crucial issue,” said Lori Windham, senior counsel of the Becket Fund for Religious Liberty, in a statement.

The Obama administration has the option of appealing the decision to the entire panel of Eighth Circuit judges. Meanwhile, the Supreme Court has not yet set a date for considering the requests to take up the nonprofit cases.