Monday, December 23, 2013

Two Important Decisions Handed Down On Contraceptive Coverage Accommodation For Religious Non-Profits

District court decisions continue to be handed down at a rapid pace in challenges by religious non-profits to the final Affordable Care Act contraceptive coverage mandate rules. Those rules (see prior posting) provide an accommodation for religious non-profits under which insurers or third party administrators will offer contraceptive coverage, instead of the objecting non-profit.

In University of Notre Dame v. Sebelius(ND IN, Dec. 20, 2013), an Indiana federal district court rejected Notre Dame's claim that its rights under RFRA and the 1st Amendment are infringed by applying the accommodation in the final rules to its self-insured employee plan and its health insurance policies offered to students. The court summarized its 39-page decision as follows:
Notre Dame wants to eat its cake, and have it still, at the expense of Congress, administrative agencies, and the employees who will be affected. Notre Dame is free to opt out of providing the coverage itself, but it can’t stop anyone else from providing it. But that is essentially what Notre Dame is requesting.... Notre Dame can’t claim to be “pressured” to do something it has done, will do, and would do regardless of the contraception requirement. If Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception. The government isn’t violating Notre Dame’s right to free exercise of religion by letting it opt out, or by arranging for third party contraception coverage.
Rick Garnett comments briefly on the decision at Mirror of Justice.

Meanwhile, the D.C. federal district court handed down a much longer (94 pages), more complicated and nuanced decision in Roman Catholic Archbishop of Washington v. Sebelius, (D DC, Dec. 20, 2013).  It held that under RFRA the accommodation does not impose a substantial burden on Catholic University's religious exercise when applied to the University's health plans offered through two insurance companies:
Through its self-certification, the religious organization declares its intention to step out of the process. That cannot be accurately characterized as an act that “facilitates” the employees’ access to the services.
However the court reached a starkly opposite result for co-plaintiff Thomas Aquinas College which offers its employees a self-insured health care plan administered by a third party administrator:
the obligation to take affirmative steps to identify and contract with a willing third-party administrator if the existing third-party administrator declines [to provide contraceptive coverage directly] forces the religious organization to do something to accomplish an end that is inimical to its beliefs. This involves the organization in facilitating access to contraceptive services, which the College has averred it cannot do, and it entails the critical element of modifying one’s behavior. Therefore, the College has met its burden to identify a burden on religious exercise imposed by the regulations governing self-insured plans.
The court then went on to dismiss for lack of standing challenges by several other educational, charitable and religious organizations that provide their employees health insurance through the Archdiocese's "church plan."  The court relied on a belated concession made by the government in this and some other cases that it lacks authority to enforce the requirement that third party administrators of "church plans" furnish contraceptive coverage on behalf of objecting organizations because the enforcement authority is derived from ERISA which does not apply to "church plans." The court explained:
Although the church plan plaintiffs are self-insured, and they are under the same obligation as Thomas Aquinas to self-certify and to transmit the form to the third-party administrator, that conduct does not give rise to a concrete, actual or imminent, cognizable injury in fact when it is performed by the church plan plaintiffs because there is no reason to believe that anything will happen after that. 
Additionally the court rejected plaintiffs' 1st Amendment free exercise and Establishment Clause claims and many of their free speech claims.  However it held unconstitutional as a free speech violation a provision in the regulations barring religious non-profits from directly or indirectly seeking to influence the third party administrator's decision to make arrangements for contraceptive services.

Finally the court addressed an argument that has been lurking in the background but was apparently pressed for the first time here-- that the contraceptive coverage mandate violates the Weldon Amendment which prohibits government agencies from discriminating against health care entities that do not provide, refer or provide coverage for abortions. The court said that it:
does not need to wade into this blend of science and theology and decide whether emergency contraceptives are “abortion-inducing” products or simply contraceptives in order to find that the mandate is consistent with the Weldon Amendment..... [T]here is no indication that the contraceptive mandate discriminates ... because they do not provide, pay for, provide coverage of, or refer for abortions. 
In a press release issued Saturday, the Archdiocese of Washington said it will immediately appeal the decision.

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