Another Challenge to the Accommodation to the Affordable Care Act’s Contraceptive Mandate Fails

Another Challenge to the Accommodation to the Affordable Care Act’s

Contraceptive Mandate Fails

 

The Affordable Care Act (the “ACA”) and it's implementing regulations require, inter alia, that insurance plans cover, without a deductible, all FDA approved contraceptives (the “Mandate”).  Certain for-profit organizations led by Hobby Lobby have challenged this requirement. Various lower courts that have come to a variety of conclusions to whether or not Hobby Lobby and other companies making similar arguments must comply with this aspect of the ACA.  My criticism of their arguments appears HERE.  The cases now pending before the United States Supreme Court, and a ruling is expected any day now

 

There is another series of challenges to the ACA’s Mandate now moving through the courts.  Under the implementing regulations, certain obviously religious organizations (e.g., churches) are exempt from the Mandate.  Another class of religiously affiliated organizations (e.g., Catholic colleges) are not exempt from the Mandate, but may be exempted from it.  In order to take advantage of this exemption, those religious organizations are required to sign and submit a Form 700 that certifies that they are a qualifying religious organization.  When the religious organization exempts itself from the requirements of the Mandate, either the plan’s third-party administrator or insurer is obligated to directly make available the coverage for contraceptives. 

Certain religious organizations that of themselves qualify for this exemption from the Mandate, it being referred to as the "Accommodation," have objected to the obligation to submit the Form 700 on the basis that it will then prompt coverage of the contraceptives that go against their religious beliefs.

While there are decisions to the contrary, the most notable being one in favor of the Little Sisters of the Poor, the clear trend in these decisions is that the Accommodation does not violate the religious rights of the subject religious organizations.  For example, in a decision out of the Seventh Circuit Court of Appeals written by Judge Posner, the reasoning of which has recently been adopted by the US District Court for the Southern District of Alabama (Eternal World Television Network v. Burwell, 1:13-cv-00521-CG-C (June 17, 2014):

Federal law, not the religious organizations signing and mailing of the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.  By refusing to fill out the form Notre Dame would subject itself to penalties, but [it's third-party administrator] would still be required by federal law to provide the services to the university's students and employees unless and until their contractual relation with Notre Dame terminated.

University of Notre Dame v. Sibelius, 743 F.3d 547, 554 (7th Cir. 2014).

Continuing on that same point, as observed by the Eternal World Court:

Legally (if not morally) speaking, there is a world of difference between a law that compels EWTN to provide contraceptive coverage directly and one in which the government places the burden on someone else after EWTN ops out.  Because EWTN's only religious objection to the mandate hinges upon the effect it will have on other parties after ETWN signs Form 700 rather than anything inherent to the act of signing and delivering Form 700 itself, the court  finds that the mandate does not impose a substantial burden on EWTN's religious practice within the meaning of the [Religious Freedom Restoration Act].

In a similar vein, in the Notre Dame decision, Judge Posner had observed that, while a conscientious objector may for himself avoid military service, he cannot then object that someone else be drafted in his place.

 

No doubt this controversy will  be headed to the Supreme Court for resolution.