Health Reform WK-EDGE Federal retiree lacks standing to challenge law mandating government employees’ contraception coverage
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Monday, February 22, 2021

Federal retiree lacks standing to challenge law mandating government employees’ contraception coverage

By David Yucht, J.D.

The court did not doubt the sincerity of the retiree’s belief that he had a religious obligation to oppose the law, however, "standing is not measured by the intensity of the litigant’s interest or the fervor of his advocacy."

A federal judge in Maryland ruled that a federal retiree lacked standing to challenge provisions of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) which mandated that government employees be offered coverage for contraception without cost sharing. Consequently, the court dismissed the employee’s suit filed against OPM and other federal entities challenging the constitutionality of the implementation of these provisions (Soda v. U.S. Office of Personnel ManagementFebruary 12, 2021, Bredar, J.).

Federal Employee Health Benefits Program. Federal employees have long been offered non-mandatory health insurance under the Federal Employee Health Benefits Program (FEHB). The OPM is tasked with administering this program. OPM negotiates coverage and rates and contracts with private insurers to offer health insurance plans to federal employees and retirees. Generally, the federal government pays 75 percent of the premium cost, the employee pays the rest. Beginning in 1999, Congress required insurers who cover prescription drugs to cover contraceptives unless the insurance provider sought a religious exemption. No insurance provider in Maryland sought such an exemption.

Law updated by ACA. The ACA updated the law, requiring plans to cover all FDA approved contraceptive methods. The religious exemption continued in effect. Based on the ACA, OPM advised that FEHB plans would be required to "cover contraceptive services with no cost sharing." A retired federal employee living in Maryland asserted that by instructing carriers to offer contraceptive coverage without cost sharing, OPM and other federal entities violated his rights as a religious objector to abortion and contraception. He sued, asserting claims under the Religious Freedom Restoration Act and the First and Fifth Amendments to the U.S. Constitution. The government brought a motion to dismiss challenging the retiree’s standing to bring this case.

Standing. The court determined that retiree lacked standing to bring this case, and, consequently, granted the government’s motion. The court noted that for the retiree to be able to bring this case, he needed to show that he suffered "an injury in fact," and that there was a connection between his injury and the conduct complained of. He also needed to demonstrate that it was likely that a favorable decision by the court would redress his injury. The court ruled that the retiree had not identified a cognizable injury. The harm he identified was an injury to his religious practice, based on a concern that his voluntary participation in FEHB plans caused him to pay for contraceptive services in violation of his religious beliefs. The court felt that the retiree’s engagement in the FEHB scheme where his contributions were routed to a pool from which OPM pays various providers for many different services, did not amount to his funding contraception. Additionally, even if he suffered actual harm, it was not caused by the actions he challenged. OPM’s implementation of the ACA’s requirements was not what led to the contraceptive coverage which was first instituted in 1999. Finally, the retiree failed to show that the relief he sought would likely provide him redress. The court noted that his alleged injury would be cured only if a non-party private insurer wanted to offer a plan satisfying the retiree’s religious restrictions. The retiree was unable to show that any carrier was interested in offering such a plan.

The case is No. 1:15-cv-00898-JKB.

Attorneys: Thomas J. Schetelich (Ferguson, Schetelich & Ballew, P.A.) for Frank Soda. Carol Federighi, U.S. Department of Justice, for U.S. Office of Personnel Management and Katherine Archuleta.

Companies: U.S. Office of Personnel Management

Cases: CaseDecisions ContraceptionCoverageNews InsurerNews MarylandNews

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