Even if the ACA requires that insurance issuers and group health plans include contraceptive coverage regardless of whether CNS and HCC self-certify, it also compels CNS and HCC to act in a manner that they sincerely believe would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty.... [I]f one sincerely believes that completing Form 700 or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear.... Religious beliefs need not be “acceptable, logical, consistent, or comprehensible to others” to deserve protection.The court went on to hold that even if the government has a compelling interest here, it has not used the least restrictive means to achieve its goals. Those less restrictive means include requiring the government to identify the third party administrator who will be responsible for furnishing coverage; having the government directly furnish contraceptive coverage to women whose employers object to doing so; or making contraceptive coverage available through insurance exchanges.
In a second opinion issued yesterday, Dordt College v. Burwell, the 8th Circuit applied its Sharpe Holdings precedent to a similar challenge by two religiously affiliated colleges.
In a press release on the decision, Becket Fund says that the split in Circuits created by yesterday's opinions greatly increases the likelihood that the Supreme Court will grant review in one or more cases raising the issue. Cert petitions have already been filed in seven other cases in which circuit courts upheld the accommodation rules.
