This blog, written by Thomas E. Rutledge, focuses primarily on business entity law in Kentucky. Postings on contract law, contractual and statutory construction, and the entity law of other jurisdictions appear as well. There may as well be some random discussions of classical, medieval and renaissance history.
Wednesday, June 18, 2014
Another Challenge to the Accommodation to the Affordable Care Act’s Contraceptive Mandate Fails
Challenge to the Accommodation to the Affordable Care Act’s
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
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
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.
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):
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
(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.
doubt this controversy willbe headed to
the Supreme Court for resolution.