11th Circuit Upholds Contraceptive Mandate Accommodation, But Delays Enforcement Pending SCOTUS Decision

Yesterday in a consolidated appeal of cases coming from Alabama and Georgia, the U.S. 11th Circuit Court of Appeals in a 2-1 decision upheld the Obama Administration's accommodation for religious non-profits that object to the Affordable Care Act's contraceptive coverage mandate.  In Eternal Word Television Network, Inc. v. Burwell, (11th Cir., Feb. 18, 2016), the majority, in an 86-page opinion by Judge Pryor, held that the accommodation does not violate the protections of the Religious Freedom Restoration Act, because it does not substantially burden the religious exercise of non-profits.  Alternatively the majority concluded that the government has met RFRA's compelling interest and least restrictive means tests. Judge Pryor, in a n 86-page majority opinion, said in part:

We recognize that the plaintiffs sincerely abhor and object to the subsequent acts taken by the government and their TPA [third party administrator], which ultimately result in the TPA providing contraceptive coverage to their plan participants and beneficiaries. We acknowledge that they “may not accept [the] distinction” that we draw here between their conduct and the downstream, separate conduct of HHS and the TPAs to provide coverage.... But we simply cannot say that RFRA affords the plaintiffs the right to prevent women from obtaining contraceptive coverage to which federal law entitles them based on the de minimis burden that the plaintiffs face in notifying the government that they have a religious objection. 

Judge Anderson filed a 3-page concurring opinion focusing on the "less restrictive means" issue.

Judge Tjoflat, in a 55-page dissent, said in part:

If the substantial-burden test were as the majority believes it to be, federal judges would have to decide whether the burden itself substantially violated the adherent’s beliefs. That is, the majority would necessarily shift the gaze of its “objective inquiry” to the merits of religious belief. In this Bizarro World, it would be secular courts making ex cathedra pronouncements on whether Muslims are truly put out by requirements to shave their beards...., whether Seventh-day Adventists are sufficiently deterred from accepting employment by requirements to work on Saturdays..., whether Santeria priests could just make do without ritual sacrifice or Ache-infused beads and shells..., and whether the sacramental use of peyote is really that big of a deal to members of the Native American Church.... But, of course, the Constitution does not vest in the judiciary the authority to declare winners and losers in matters of faith.

Despite the majority's views on the merits, it stayed enforcement of the accommodation against plaintiffs pending the Supreme Court's decision later this term on the identical issue in Zubik v. Burwell.  Daily Report has more on the decision.