Health Reform WK-EDGE Appellate court joins sister circuits, upholds nonprofit accommodation
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Thursday, February 25, 2016

Appellate court joins sister circuits, upholds nonprofit accommodation

By Sarah E. Baumann, J.D.

The Eleventh Circuit Court of Appeals determined that the accommodation to the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) contraception mandate requiring religious nonprofits to notify HHS directly or via health plans or third party administrators (TPAs) that they object to the mandate does not violate the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb, et seq.) because it does not substantially burden religious exercise and is the least restrictive means of furthering a compelling government interest. The court also determined that the accommodation regulations do not violate the Free Speech, Establishment, and Exercise clauses of the First Amendment to the U.S. Constitution. In reaching the RFRA decision, the Eleventh Circuit joined seven sister circuits in upholding the mandate. However, it enjoined enforcement of the mandate pending a Supreme Court decision in Zubik v. Burwell and other consolidated cases (Eternal Word Television Network, Inc. v. Secretary, U.S. Department of Health and Human Services, February 18, 2016, Pryor, J.).

In separate cases, the Catholic Archdiocese of Atlanta and its Archbishop, the Catholic Diocese of Savannah and its bishop, and Catholic Charities of the Archdiocese of Atlanta, Inc. (collectively the Dioceses) and Eternal Word Television Network, Inc., and the State of Alabama (collectively Eternal Word) challenged the accommodation on RFRA and First Amendment grounds. In the Dioceses’ case, a district court granted summary judgment to the government with respect to the RFRA claims, but entered judgment for the Dioceses with respect to a First Amendment claim (see Preventive services regulations cannot be applied to religious charities, April 2, 2014; ERISA definition of “church plan” not important to contraception mandate opposition, June 4, 2014). In the Eternal Word matter, a separate district court granted summary judgment to the government. The cases were consolidated on appeal (see Religious organizations’ tax statuses a legitimate basis for differential treatment, June 25, 2014; Catholic broadcaster granted temporary injunction against form notification requirement, July 2, 2014).

RFRA. The RFRA prevents the government from substantially burdening religious exercise, unless the government’s actions are the least restrictive means of furthering a compelling government interest. Although the court determined that Eternal Word and the Dioceses held sincere religious beliefs opposing contraception and in complicit participation in distribution of contraception, it held that the accommodation did not substantially burden religious exercise. The court differentiated between a “burden” and a “substantial burden,” noting that the only action that the accommodation required of the plaintiffs is to complete and submit Form EBSA 700 to health plans or TPAs or write a letter to HHS. It stated that the plaintiffs’ real objection was based upon the significance it attributed to that small act, believing that the act made them complicit in the distribution of contraception. Instead, the court noted, the ACA and the Health Resources and Services Administration (HRSA) guidelines entitle women to contraception coverage regardless of actions taken by their employers with respect to the accommodation. Religious adherents cannot claim that another party’s subsequent conduct is a substantial burden. The government does not force employers opposed to contraception to pay for it or notify employees of its availability. Thus, there was no substantial burden on religious exercise.

Even if the court assumed that the accommodation imposed a substantial burden on religious exercise, the government’s actions were the least restrictive means to further a compelling governmental interest. The government has a compelling interest in preventing unintended pregnancies and improving women’s health by providing them with access to contraception. Existing exceptions to the contraception mandate do not make the interest less compelling. The exception for grandfathered health plans is temporary; furthermore, the court refused to penalize the government for easing employers’ transitions to ACA compliance. While the mandate applies to large employers, rather than small employers, employees will still receive contraception without cost-sharing. If small employers offer insurance, they will provide such coverage or seek an accommodation. If small employers do not provide such coverage, employees must obtain coverage or face a penalty. All marketplace plans provide contraception coverage. With respect to the exemption for religious employers, the government is permitted to balance its compelling interest with respect for religion and could understandably decide that employees of religious organizations, such as churches, are more likely to adhere to church teachings than employees of affiliated organizations, such as schools, thereby creating an exemption for employees of churches. Suggestions to require the government to pay for contraception via a single-payer system by creating or expanding existing government programs or through tax credits impose larger burdens on women and would make contraception less accessible. The dissenting opinion did not provide an explanation as to how its proposal to designate TPAs for self-insured organizations to administer contraception without requiring the employer to state its religious objection could work.

First Amendment. The court rejected Eternal Word’s First Amendment claims, finding that the mandate was a neutral law intended to improve health rather than infringe on religion, and was generally applicable. It does not discriminate against religious groups based on denomination, but rather distinguished between houses of worship and other organizations based on tax status. Even assuming that the accommodation implicated the Free Speech clause, the government’s interest is compelling enough to require employers to speak to opt out of the mandate.

The Eleventh Circuit affirmed the district court’s grant of summary judgment in Eternal Word, vacated the district court’s grant of summary judgment with respect to the Dioceses, and remanded the Dioceses case with instructions to enter summary judgment for the government. However, it stayed enforcement of the mandate against the plaintiffs until the U.S. Supreme Court issues a decision in Zubik v. Burwell (see Supreme Court will hear 7 challenges to contraceptive mandate, November 10, 2015).

Dissent. Judge Tjoflat dissented, opining that the accommodation imposed a substantial burden on religious exercise that did not survive strict scrutiny. He argued that the majority improperly reached an objective determination as to whether the government’s actions substantially burdened the plaintiffs’ religious exercise, when, in fact, it should have given deference to the plaintiffs in determining whether the actions burdened their religious exercise and then objectively determined whether that burden was substantial. He argued that there were “sundry ways” in which the government could provide women with free access to contraceptive coverage and complained that the government was seeking a “free pass” with respect to the least restrictive means requirement. Judge Anderson joined in the majority opinion, but issued a separate concurrence to attack Judge Tjoflat’s proposal to satisfy the least restrictive means test.

The cases are Nos. 14-12696, 14-12890, and 14-13239.

Attorneys: Lori Halstead Windham, The Becket Fund for Religious Liberty, for Eternal Word Television Network, Inc. Patrick Nemeroff, U.S. Department of Justice, for Secretary of the U.S. Department of Health and Human Services, U.S. Department of Health and Human Services, Secretary of the U.S. Department of Labor, U.S. Department of Labor, Secretary of the U.S. Department of the Treasury and U.S. Department of the Treasury.

Companies: Eternal Word Television Network, Inc.; U.S. Department of Health and Human Services; U.S. Department of Labor; U.S. Department of the Treasury; Roman Catholic Archdiocese of Atlanta; Catholic Charities of the Archdiocese of Atlanta, Inc.; Roman Catholic Diocese of Savannah;

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