Religious Exemptions In ACA and FICA Upheld

In Olson v. Social Security Administration, 2017 U.S. Dist. LEXIS 41469 (D ND, March 22, 2017), a North Dakota federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 41468, March 3, 2017) and dismissed plaintiff's challenge to the constitutionality of the religious exemptions in the Affordable Care Act and FICA.  In rejecting plaintiff's Establishment Clause claim, the magistrate judge said in part:

Religious sects whose members qualify for the ACA's religious exemption have made reasonable provision for their dependent members for a substantial period of time; that is designed to protect other taxpayers, not to improperly favor or target any religion.

Religious Health Care Ministries Show Growth

The Wall Street Journal this morning reports that a growing number of people have been moving to "health care ministries" since the enactment of the Affordable Care Act.  The number of participants in these religious health-sharing arrangements has grown from 200,000 to 500,000 since 2010.  According to the report:

The ministries, which operate outside the insurance system and aren’t regulated by states, provide a health-care cost-sharing arrangement among people with similarly held beliefs. Their membership growth has been spurred by an Affordable Care Act provision allowing participants in eligible ministries to avoid fines for not buying insurance....

The membership growth was largely unanticipated by ministry officials when the groups obtained an exception to the law. Only ministries in continuous operation since at least Dec. 31, 1999 are exempt from the ACA. The carve-out was intended to satisfy what at the time were relatively small religious groups that argued that their nonparticipation was a matter of religious freedom.

Officials are concerned both about the risk to participants from the unregulated operation of the arrangements, and about their impact on the Affordable Care Act insurance pool. (See prior related posting.)

Proposed Legislation Would Exempt Christian Scientists From ACA Individual Mandate

On Thursday, the House Ways and Means Committee voted (legislative history)  to forward on to the full House of Representatives H.R. 2061, the Equitable Access to Care and Health ("EACH") Act (full text). The proposed bill would extend the current religious conscience exemption in the Affordable Care Act that applies to Amish and Old Order Mennonites to also include Christian Scientists. (Background). The bipartisan bill currently has 170 co-sponsors in the House.  An identical Senate Bill (S. 352) has 30 co-sponsors.  The bill is still in committee in the Senate.

DC Circuit Rejects Establishment Clause Challenge To ACA Religious Conscience Exemption

In Cutler v. U.S. Department of Health and Human Services, DC Cir., Aug. 14, 2015), the Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act.  The ACA exempts from the individual mandate members of traditional religious groups such as the Amish and Mennonites who are conscientiously opposed to acceptance of health benefits and whose sect makes provision for their dependent members. Plaintiff Jeffrey Cutler objected for personal, not religious, reasons to purchasing insurance that complies with ACA requirements. The court said in part:

The religious exemption in the Affordable Care Act, like its counterpart in the Social Security Act, accommodates religion by exempting all believers whose faith system provides an established, alternative support network that ensures individuals will not later seek to avail themselves of the federal benefits for which they did not contribute. Cutler is correct that the Affordable Care Act withholds a similar exemption for non-believers. But the Supreme Court has repeatedly held that “the government may accommodate religious practices without violating the Establishment Clause....

Plaintiff Entitled To Accommodation From Affordable Care Act's Hyde Amendment Arrangement

In Howe v. Burwell, (D VT, July 20, 2015), a Vermont federal district court dealt with yet another permutation of religious objections to provisions in the Affordable Care Act.  Under the ACA, health insurers which offer policies through state exchanges may, but are not required to, cover abortion services.  If they do, in order to comply with the Hyde amendment that bars use of federal funds to pay for abortions, the insurance company is required to segregate at least $1 per month of the premium paid by each individual and use those funds to pay for abortion services. All policies offered through the Vermont exchange have this arrangement for abortion services which plaintiff claims, among other things, violates his free exercise rights under RFRA. He objects on religious grounds to funds he is required to pay in as a premium being used to pay for others' abortions.

The court held that most of plaintiff's RFRA claims against the federal government arise out of decisions third parties, such as private insurance companies, have made. However the federal government could accommodate plaintiff by refraining from enforcement actions against any insurance company that agrees not to comply with the segregation requirement for the policy offered to plaintiff. The court went on:

The Federal Defendants have already agreed not to enforce the segregation requirement against any third party health insurer willing to offer Plaintiff health insurance coverage. Notwithstanding that agreement, because the Federal Defendants have not offered this as an accommodation under RFRA on a permanent basis, Plaintiff retains standing to request it in the form of declaratory relief. ...

Plaintiffs request for a declaratory judgment that he is entitled to non-enforcement of the segregation requirement (and the separate payment) is therefore sufficiently plausible to avoid dismissal at this stage in the proceedings.

Lawsuit Challenges Lack of Availability of Plans Without Abortion Coverage On Health Insurance Exchange

The Providence (RI) Journal reports today on a lawsuit with a new twist on free exercise objections to the Affordable Care Act.  Barth Bracy, director of the Rhode Island Right to Life Committee and a resident of Connecticut, along with his wife, filed suit two months ago because the only health care plans available through the Health Insurance Exchange in Connecticut include abortion coverage.  All enrollees must pay a small separate fee for that coverage.

The complaint (full text) in Bracy v. Sebelius, (D CT, filed 5/1/2014), alleges that if the Bracys purchase a plan through the Exchange, they will receive nearly a 100% subsidy for its cost.  But they can only obtain a plan that excludes abortion coverage by purchasing outside the Exchange and receive no subsidy.  The premium on such a plan would be nearly double the $494 per month premium they are now paying. They allege that this violates their rights protected by the Free Exercise Clause, RFRA and the Connecticut Religious Freedom Restoration Act. They also claim that their 1st Amendment right to receive information is infringed by regulations that prohibit insurers or exchanges from advertising whether plans cover abortions, from informing enrollees prior to the time of enrollment whether the plan covers abortion, and prohibits telling enrollees the portion of their total premium that is allocated to abortion coverage.