The contraceptive coverage requirement in the Affordable Care Act (ACA) has been the subject of numerous challenges across the country from plaintiffs with religious objections. Long-time readers know that I have been writing about these cases for several years – and they are not done yet. This week, the 9th U.S. Circuit Court of Appeals issued a ruling echoing what many other appeals courts have said previously – namely, that requiring a religious organization to file a form opting out of the requirement does not amount to a “substantial burden” on religious exercise under the Religious Freedom Restoration Act (RFRA).
The U.S. Supreme Court took up a similar set of cases in Zubik v. Burwell in 2016, but did not rule on the substantive question of whether the accommodation process for religious employers violates RFRA. Instead, the Court issued a surprise opinion sending the cases back to lower courts with instructions to allow the parties to seek a compromise such that the organizations’ employees could receive seamless contraceptive coverage without the organizations having to provide separate notification of their objection.
Since then, a new administration has brought new agency rules implementing the ACA, including rules expanding the religious exemption. Those rules are now being challenged by several states that claim the expansion was an improper use of the administration’s rulemaking authority. For its part, the administration argues that the exemptions are required by RFRA, but the 9th Circuit disagreed. Here is an excerpt from the majority’s explanation:
We now hold that the accommodation process likely does not substantially burden the exercise of religion. An organization with a sincere religious objection to arranging contraceptive coverage need only send a self-certification form to the insurance issuer or the TPA, or send a written notice to DHHS. . . .
Once it has opted out, the organization’s obligation to contract, arrange, pay, or refer for access to contraception is completely shifted to third parties. The organization may then freely express its opposition to contraceptive care. Viewed objectively, completing a form stating that one has a religious objection is not a substantial burden—it is at most a de minimis burden. The burden is simply a notification, after which the organization is relieved of any role whatsoever in providing objectionable care.
RFRA does not entitle organizations to control their employees’ relationships with third parties that are willing and obligated to provide contraceptive care.
The ruling leaves in place an injunction halting the new rules in those states which brought the lawsuit. At the same time, a Pennsylvania court has issued a nationwide injunction in a similar case that is currently being appealed to the Supreme Court. All of that is to say: there is likely more to come in the dispute between legislation that seeks to provide free contraceptive coverage to all women in America and employers who have sincere religious objections to providing that coverage. Stay tuned.