In
Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell, (10th Cir., July 14, 2015), the U.S. 10th Circuit Court of Appeals upheld the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. Plaintiffs asserted RFRA, free exercise, Establishment Clause and free speech challenges to the rules that allow an opt-out with contraceptive coverage then being furnished directly by the insurer or third party administrator. The 98-page majority opinion, written by Judge Matheson who began it with a Glossary of Legal and Regulatory Terms, particularly focused on the arguments under RFRA. Here are a few excerpts:
Before we present our analysis of the issues, we wish to highlight the unusual nature of Plaintiffs’ central claim, which attacks the Government’s attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law.... Plaintiffs not only challenge a law that requires them to provide contraceptive coverage against their religious beliefs, they challenge the exception that the law affords to them....
We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA.
Judge Baldock dissented in part, arguing that applying the accommodation to self-insured plans using Third Party Administrators violates RFRA. He said in part:
Under the ACA accommodation scheme, in the insured health plan context, “a health insurance issuer . . . would be obligated to provide contraceptive coverage under the ACA whether or not [the insured non-profit] delivered the Form or notification to HHS.” ... But in the self-insured context, a TPA would be “authorized and obligated to provide the coverage . . . only if the religious non-profit . . . opts out.”
AP reports on the decision which dealt with appeals in cases from Oklahoma and Colorado.
