The Obama administration picked up another legal victory Tuesday as a federal appeals court ruled that employers’ religious rights are not substantially burdened by completing the paperwork in order to opt out of the Affordable Care Act’s contraception benefit.
The ruling came in the Little Sisters of the Poor case, one of the first legal challenges filed by religiously affiliated nonprofits to argue that completing the form to opt out of providing contraception coverage in its employee health plans violated both the Religious Freedom Restoration Act and the First Amendment.
The United States Supreme Court in January 2014 granted the Little Sisters of the Poor’s request for a temporary injunction while the appeals court considered their claims. The Tenth Circuit heard those arguments in December 2014.
The ACA requires some employers to offer health insurance plans that cover contraception as part of a package of preventive care services provided to employees at no additional cost or co-pay. President Obama’s health law includes an exemption for churches and other houses of worship. It also contains an accommodation process for religiously affiliated nonprofits, like Little Sisters of the Poor, that are not churches but maintain a religious objection to providing plans with contraception coverage.
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That process allows the objecting employers to complete a form, or otherwise notify the government in writing, of their religious objection and triggers a process whereby the insurance company contracts directly with the people who want contraception coverage at no additional cost.
Little Sisters of the Poor and other religiously affiliated nonprofits argue the task of completing the opt-out form or otherwise notifying the government of their objection substantially burdens their religious rights. In a massive 95-page opinion, the Tenth Circuit rejected this argument outright, holding “[t]he Departments have made opting out of the Mandate at least as easy as obtaining a parade permit, filing a simple tax form, or registering to vote—in other words, a routine, brief administrative task.”
“We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise,” the majority wrote. “The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage.”
Little Sisters of the Poor and other groups argue they should be treated like religious employers and be fully exempt from the contraception coverage requirement. This argument, the Tenth Circuit held, “misconstrues the purpose of religious accommodation: to permit the religious objector both to avoid a religious burden and to comply with the law.”
“We’re disappointed with today’s decision,” Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty and lead attorney for the Little Sisters of the Poor, said in a statement following the decision. “It is a national embarrassment that the world’s most powerful government insists that, instead of providing contraceptives through its own existing exchanges and programs, it must crush the Little Sisters’ faith and force them to participate.”
Gregory Lipper, senior litigation counsel of Americans United for Separation of Church and State, applauded the decision.
“To the outside observer it looks like the Becket Fund really wants to be able to argue that the administration is forcing contraception down the throats of nuns,” Lipper said in an interview with Rewire. “Not only [are these cases] weaponizing religious liberty to take away women’s health care, [they are] turning religious liberty into a game of ‘gotcha,’ and I think the courts of appeals are finally starting to push back on this.”
According to the Becket Fund, its attorneys are carefully reviewing the decision before determining those next steps.
Options include appealing the decision to the full Tenth Circuit for review or asking the Roberts Court to step in. “We will keep on fighting for the Little Sisters, even if that means having to go all the way to the Supreme Court,” said Daniel Blomberg, counsel at the Becket Fund for Religious Liberty.
The Becket Fund has filed several requests for Supreme Court intervention in the fight over the ACA accommodation, most recently in July on behalf of Houston Baptist University. In that case, the conservative Fifth Circuit Court of Appeals sided with the administration, ruling the accommodation process was in no way a burden on religious rights.
“The real question right now is are these cases worthy of Supreme Court review,” Lipper said. “Every court of appeals that has looked at these both pre-and-post-Hobby Lobby has rejected them. Under any normal criteria it doesn’t seem like at this point these cases are worthy of Supreme Court review. Whether they’ll go up anyhow, time will tell.”