10th Circuit Upholds State Insurance Regulator's Closure of Christian Health Care Sharing Ministry

In Renteria v. New Mexico Office of the Superintendent of Insurance, (10th Cir., Feb. 27, 2025), the U.S. 10th Circuit Court of Appeals, in a 2-1 decision, upheld a trial court's refusal to preliminarily enjoin the enforcement of a New Mexico cease and desist order issued by the Office of the Superintendent of Insurance against a Mennonite church's health care sharing ministry. The ministry claimed that the order violated its free exercise rights.  The court said in part:

OSI’s enforcement action here was not because of Gospel Light’s religious beliefs, it was because they operated outside of the bounds of the NMIC [New Mexico Insurance Code] that applied to their business activities. In other words, OSI’s asserted interests were to protect New Mexico consumers by regulating the insurance industry, not to burden or regulate religious conduct. That other organizations, not entirely secular and not comparable to Gospel Light, merit partial exemptions under the NMIC does not carry the water for Plaintiffs that the NMIC treats a secular activity more favorably than a comparable religious activity. Consequently, rational-basis review applies.....

OSI sought to enforce the NMIC to protect consumers. The “regulation and licensure of insurance producers” are “important state interests,”... and OSI’s final order, which enforces the NMIC against Gospel Light, is rationally related to the regulation of health insurance. As such, the government action here satisfies rational-basis review, and Plaintiffs have not shown a substantial likelihood of success on the merits on their Free Exercise claims....

Judge Carson dissented, saying in part: 

State governments must enforce statutes in a neutral and generally applicable manner.  In this case, that means the New Mexico Office of the Superintendent of Insurance (“OSI”) cannot regulate Gospel Light Mennonite Church Medical Aid Plan (“Gospel Light”), a religious organization, more stringently than it regulates similarly situated secular organizations like labor unions and fraternal organizations.  But the district court reached the opposite conclusion when it allowed the OSI to impose statutory restrictions upon Gospel Light while exempting similarly situated secular organizations.  The majority upholds the OSI’s impermissible action.  Because the district court’s and the majority’s conclusions run contrary to established Tenth Circuit and Supreme Court precedent precluding discrimination based on religious views, I respectfully dissent.

Court Refuses to Enjoin Colorado's Reporting Requirements for Health Care Sharing Ministries

In Alliance of Health Care Sharing Ministries v. Conway, (D CO, Jan. 13, 2025), a Colorado federal district court refused to issue a preliminary injunction to prevent enforcement of Colorado's reporting requirement for health care sharing plans, most of which are religiously affiliated. The court said in part:

The Alliance has not made a showing—strong or otherwise—that it is likely to succeed on the merits of any of its claims.  First, the Alliance has not demonstrated that the Reporting Law is not neutral or generally applicable, or that it is not rationally related to a legitimate government interest.  Accordingly, the Alliance has not shown that it is likely to succeed on the merits of its free exercise claim.  Second, generally applicable administrative and recordkeeping regulations like the Reporting Law do not violate the Establishment Clause.  The Alliance is therefore unlikely to succeed on the merits of its Establishment Clause claim.  Third, the Alliance has not shown that the Reporting Law’s requirement that the Alliance’s members disclose certain third-party vendors poses any risk of chilling the Alliance’s members’ First Amendment associational rights.  Thus, the Alliance’s challenge to the Reporting Law on freedom-of-association grounds is unlikely to succeed.  Fourth and finally, the Alliance has not shown that the Reporting Law—in compelling the Alliance’s members divulge their marketing materials and to report factually accurate operations data—violates the Alliance’s members’ free speech rights.  The Alliance therefore has not shown that it is likely to succeed on the merits of its free speech claim.

In a motion filed Jan. 28 (full text), plaintiff seeks an injunction pending appeal.

Cert. Granted in Appointments Clause Case; Underlying Issue Is Religious Objection to Insurance Coverage Mandate

The U.S. Supreme Court yesterday granted review in Becerra v. Braidwood Management, Inc., (Docket No. 24-316, certiorari granted 1/10/2025).  (Order List). The issue before the Supreme Court set out in the petition for certiorari is whether the structure of the U.S. Preventive Services Task Force violates the Appointments Clause of the Constitution. Health insurance plans are required to cover without cost sharing various preventive services recommended by the Task Force and by two other advisory bodies. As explained in the 5th Circuit opinion being reviewed, plaintiffs object on religious grounds to providing the Task Force's mandated insurance coverage for pre-exposure drugs that prevent the transmission of HIV. Plaintiffs contend that this coverage makes them complicit in facilitating homosexual behavior, drug use and sexual activity outside of marriage. UPI reports on the Court's action.

UPDATE: on January 13, the Court denied certiorari sought by a conditional cross-petition in the case. Braidwood Management, Inc. v. Becerra, (Docket No. 24-475, certiorari denied 1/13/2025). (Order List.)

Suit Challenges Illinois Requirements for Insurance Policies to Cover Abortions

Suit was filed yesterday in an Illinois federal district court challenging on both constitutional and federal statutory grounds Illinois statutes that requires health-insurance policies to cover elective abortions on the same terms as other pregnancy-related benefits and to cover, without co-pays, abortion inducing drugs. The complaint (full text) in Students for Life of America v. Gillespie, (ND IL, filed 11/20/2024), alleges that these provisions violate free exercise rights, the right of expressive association, the federal Comstock Act, the Coates-Snow Amendment and the Weldon Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit.

Organization Did Not Show That Its Anti-Abortion Views Are Religious Beliefs

In Oregon Right to Life v. Stolfi, (D OR, Sept. 30, 2024), an Oregon federal district court refused to issue a preliminary injunction against Oregon's requiring Oregon Right to Life to cover abortion and certain contraceptives in its employee health plan. The organization asserted a 1st Amendment free exercise claim.  The court said in part:

... Plaintiff is not affiliated with any religious practice or institution and does not have any religious requirement for being an employee or director.  The “specific purpose” and “personal life perspectives” that Plaintiff’s directors are required to subscribe to is free of any religious elements, requiring only that they subscribe to a belief in the importance of human life and oppose abortion, euthanasia, assisted suicide, and “life-destroying research.”  As noted, Plaintiff has over 25,000 members, who are not required to subscribe to any religious belief and are responsible for electing two members of Plaintiff’s board of directors.  Other than a fleeting reference to “Judeo-Christian ethics,” there is nothing in the articles of incorporation that would suggest any religious element in Plaintiff’s organization.   

There are many reasons why an individual or entity might oppose abortion and contraception, which range from deeply held religious conviction to the purely philosophical.  Plaintiff asserts in this litigation that its reasons, as an organization, are religious, but that assertion is not fully supported by the record.  It is not necessary for the Court, at this early stage of the case, to conclusively resolve whether Plaintiff’s beliefs are, in Plaintiff’s own scheme of things, religious.  But the Court’s review of Plaintiff’s organizational documents and requirements for membership, employment, and leadership cast doubt on whether Plaintiff’s opposition is genuinely religious in nature.  This doubt undermines Plaintiff’s showing of likely success on the merits.  

Defendant also challenges whether Plaintiff actually holds the beliefs professed in the Complaint.  As noted, a major aspect of Plaintiff’s objection the RHEA mandate is the provision of certain forms of contraception.  Plaintiff has maintained a health benefit plan through Providence Health Plans since 2015, years prior to the passage of the RHEA, and now objects that Providence Health Plans is not acceptable to them because it covers challenged forms of contraception.  The fact that Plaintiff maintained benefits through Providence Health Plans prior to the passage of the RHEA, despite its provisions concerning contraception, likewise casts doubt on Plaintiff’s claim.

Supreme Court Review Sought for NY Health Insurance Abortion Coverage Mandate

 A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Roman Catholic Diocese of Albany v. Harris, (Sup. Ct., filed 9/18/24). In the case New York's highest appellate court rejected a claim that the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is only available to entities whose purpose is to inculcate religious values and that primarily employ and serve persons who share their religious tenets. Plaintiffs, which are religiously affiliated entities, contend that their free exercise rights are infringed because they do not meet the criteria for the exemption. (See prior posting.) Becket Fund issued a press release announcing the filing of the petition for review.

Arizona Governor Vetoes Bill That Would Have Required Equal Insurance Coverage and Access for Gender Detransitioning

On June 18, Arizona Governor Katie Hobbs vetoed (full text of veto letter) vetoed Senate Bill 1151 (full text) that would have required health insurers that cover gender transition procedures to also provide coverage for gender detransition procedures. It would also have required physicians and hospitals that provide gender transition procedures to provide or pay for gender detransition procedures. It also would have required insurance companies to report data to the state (without identifying information on patients) on detransition claims. Governor Hobbs in her veto letter said that the bill is unnecessary and would create privacy risks for patients. Catholic News Agency reported on the Governor's veto, quoting many who disapproved of her action.

New York's Top Court Says That Religious Employer Exemption from Abortion Coverage Mandate Is Not Too Narrow

In Roman Catholic Diocese of Albany v Vullo, (NY Ct. App., May 21, 2024), New York's highest appellate court rejected a claim that the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is available only to an employer that meets 4 criteria-- it is a non-profit organization whose purpose is the inculcation of religious values and it primarily employs and serves persons who share the entity's religious tenets. Plaintiffs, which are religiously affiliated entities, contend that their free exercise rights are infringed because they do not meet the criteria for the exemption, The court said in part:

... [B]oth the regulation itself and the criteria delineating a "religious employer" for the purposes of the exemption are generally applicable and do not violate the Free Exercise Clause. Neither the existence of the exemption in the regulation nor the defined criteria allow for "individualized exemptions" that are standardless and discretionary, nor do they allow for comparable secular conduct while discriminating against religious conduct.

Reuters reports on the decision.

11th Circuit: Excluding Sex Change Surgery from Health Plan Violates Title VII

 In Lange v. Houston County, Georgia, (11th Cir., May 13, 2024), the U.S. 11th Circuit Court of Appeals in a 2-1 decision held that an employer violated Title VII's ban on sex discrimination in employment when its employee health insurance plan excluded coverage for sex change surgery. The majority said in part:

The Exclusion is a blanket denial of coverage for gender-affirming surgery.  Health Plan participants who are transgender are the only participants who would seek gender-affirming surgery.  Because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status....

 By drawing a line between gender-affirming surgery and other operations, the plan intentionally carves out an exclusion based on one’s transgender status.  Lange’s sex is inextricably tied to the denial of coverage for gender-affirming surgery.

Judge Brasher dissenting said in part:

... [T] the employer-provided health insurance plan here does not deny coverage to anyone because he or she is transgender. The alleged problem with this plan is that it excludes coverage for sex change surgeries, not that it denies coverage to transgender people. On the face of this policy, it doesn’t treat anyone differently based on sex, gender nonconformity, or transgender status....

... [T]he majority’s reasoning effectively eliminates “disparate impact” as a separate theory of liability. For various reasons, Lange is proceeding here under a disparate treatment theory, which is why the claim requires a showing of discriminatory intent. But we have developed an entire body of law—disparate impact—to address claims about certain facially nondiscriminatory employment policies that harm members of a protected class.... That body of law requires, among other things, an evaluation of an employer’s legitimate business reasons for adopting the policy.....

TLDEF issued a press release announcing the decision.

Tennessee Legislature Passes Healthcare Sharing Ministries Exemption

Yesterday the Tennessee legislature took the final procedural steps needed to send HB 1163, Healthcare Sharing Ministries Freedom to Share Act (full text) to the Governor for his signature. It exempts from state insurance regulation tax-exempt plans under which members who share a common religious or ethical belief provide for the medical or financial needs of other members through their financial contributions.

State May Regulate Health Care Sharing Ministries

In Gospel Light Mennonite Church Medical Aid Plan v. New Mexico Office of the Superintendent of Insurance, (D NM, Oct. 13, 2023), a New Mexico federal district court refused to enjoin New Mexico's insurance superintendent from regulating Health Care Sharing Ministries. The court held that the state's Insurance Code is a neutral, generally applicable statute, saying in part:

Individual Plaintiffs argue that the Superintendent’s March 26, 2020, press release, --- which cautions consumers about HCSMs and stating that these plans are unauthorized insurance products—is not neutral because it “sends a signal of official disapproval” of Individual Plaintiffs’ religious beliefs.... The Court disagrees....

Applying rational basis review, the court said that it "has little difficulty concluding that state laws mandating compliance with the Insurance Code constitute a legitimate area of governmental concern."

MD Supreme Court: State Law Sex Discrimination Ban Does Not Include Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (MD Sup. Ct., Aug. 14, 2023), the Maryland Supreme Court, responding to certified questions from a federal district court, refused in interpreting state law to follow the analogous holding of the U.S. Supreme Court in its Title VII Bostick decision.  The Maryland court held that, in light of the separate prohibition on sexual orientation discrimination in state law, the ban on sex discrimination in the Maryland Fair Employment Practices Act does not also cover discrimination on the basis of sexual orientation. It went on to hold that in light of the specific ban on pay disparities based on sex or gender identity, the Maryland Equal Pay for Equal Work Act does not bar pay disparities based on sexual orientation. Finally the court held that the exemption in the Maryland Fair Employment Practices Act for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity" covers "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." It is not co-extensive with the ministerial exception doctrine.

Justice Hotten, joined by Justice Eaves, filed a dissenting opinion contending that the ban on sex discrimination in both statutes includes sexual orientation discrimination. They would also read the religious institution exemption more narrowly than the majority, contending that it only applies when a nexus exists between the employer’s religious activities and the work that an employee performs.

The underlying case that led to the certified questions involved a complaint by a Program Data Analyst employed by Catholic Relief Services who was denied spousal health benefits for his same-sex spouse.

[Thanks to Arthur Spitzer for the lead.]

Conscience Clause in Health Insurance Mandate Does Not Violate Church's Free Exercise

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, July 25, 2023), a Washington federal district court dismissed a free exercise challenge by a church to a Washington law requiring all health insurance plans that provide maternity coverage to also provide substantially equivalent abortion coverage. Under the law, employers with religious or moral objections to specific services do not have to purchase coverage for those services, but enrollees must still be able to access coverage for the services. The court said in part:

None of the State’s arguments seem to fully address the crux of Cedar Park’s facilitation complaint: that its employees would not have access to covered abortion services absent Cedar Park’s post-SB 6219 plan. This fact is undisputed and undoubtedly true. Because of SB 6219, Cedar Park’s employees gained coverage for abortion services under their employer-sponsored health insurance plan that they would not otherwise have. Even if the “facilitation” is somewhat minimal, SB 6219 requires Cedar Park to facilitate access to covered abortion services contrary to Cedar Park’s religious beliefs....

Because the Court concludes that SB 6219 is neutral and generally applicable, the law is valid if it is rationally related to a legitimate governmental purpose....

The Washington legislature identified multiple legitimate governmental purposes for enacting SB 6219, including promoting gender equity, promoting economic success of women, improving women’s health, and protecting privacy.

Suit Challenges Exclusion of Gender Transition Care From Health Insurance Policies

Suit was filed this week in a Georgia federal district court challenging under Title VII and Title IX the exclusion from certain state of Georgia's employee health care plans coverage for gender transition procedures.  The complaint (full text) in Rich v. Georgia, (ND GA, filed 12/14/2022) alleges in part:

United withdraws coverage for care that would otherwise be covered as medically necessary when it is needed for the purpose of “sex transformation operations and related services.” It lists this exclusion under the heading “Personal Care, Comfort or Convenience,” along with televisions, air conditioners, and barber service.

The complaint alleges that this exclusion, and a similar one by another company, amount to illegal sex discrimination. TLDEF issued a press release announcing the filing of the lawsuit.

8th Circuit Affirms RFRA Rights of Catholic Health Care Organizations to Refuse Gender Transition Services

In Religious Sisters of Mercy v. Becerra, (8th Cir., Dec. 9, 2022), the U.S. 8th Circuit Court of Appeals affirmed a district court decision that enjoined the federal government from requiring various Catholic health care organizations to perform or provide insurance coverage for gender transition procedures. The district court concluded that plaintiffs' rights under the Religious Freedom Restoration Act were violated by the requirements imposed by the government's interpretation of the Affordable Care Act and Title VII.  On appeal, the government raised only jurisdictional challenges-- standing, ripeness and lack of irreparable harm.  The 8th Circuit rejected the government's challenges, except as to standing of one organizational plaintiff.

ACA Mandate To Cover PrEP Drugs Violates RFRA

In Braidwood Management Inc. v. Becerra, (ND TX, Sept. 7, 2022), a Texas federal district court held that the ACA mandate for health insurance coverage of PrEP drugs violates the rights under the Religious Freedom Restoration Act of a for-profit corporation whose owner believes that providing such coverage for his employees would make him complicit in their homosexual conduct and sexual activity outside of marriage. The court said in part:

Defendants dispute Hotze’s beliefs. They argue that Hotze’s claim that PrEP drugs facilitate various kinds of behavior is an empirical one that requires factual support.... But Defendants inappropriately contest the correctness of Hotze’s beliefs, when courts may test only the sincerity of those beliefs...

Defendants claim a compelling interest in reducing the spread of HIV, a potentially fatal infectious disease.... 

But Defendants frame the interest too broadly. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” ...

... Defendants provide no evidence of the scope of religious exemptions, the effect such exemptions would have on the insurance market or PrEP coverage, the prevalence of HIV in those communities, or any other evidence relevant “to the marginal interest” in enforcing the PrEP mandate in these cases...

Even if Defendants had satisfied the compelling-interest prong, they have not shown that the PrEP mandate is the least restrictive means of furthering that interest...

Much of the court's 42-page opinion relates to other issues. Bloomberg reports on the decision. [Thanks to James Phillips for the lead.]

California Must Allow Churches To Opt Out Of Abortion Coverage In Their Health Care Plans

In Foothill Church v. Watanabe, (ED CA, Aug. 25, 2022), a California federal district court held that the California Department of Managed Health Care (DMHC) should have taken steps so that objecting churches could be exempt from the Department's requirement that health insurance policies cover abortion services. DMHC argued that only health care plans are subject to its regulation, so exemptions will be granted only to plans, not to employers. Subjecting plaintiffs' Free Exercise claim to strict scrutiny because the DMHC rule is subject to a system of individual exemptions and thus is not "generally applicable," the court said in part:

[T]he court assumes without deciding that the Director’s understanding of the scope of her regulatory authority, that she is limited to regulating health plans, is correct. Nonetheless, nothing in the statutory text explicitly precludes her from fielding requests for exemptions from religious claimants. Likewise, nothing appears to preclude the Director from directing the religious claimant’s plan to submit a revised evidence of coverage document comporting with the religious claimant’s belief to the DMHC for approval. The Director’s authority to give orders to a plan does not foreclose the authority to consider requests for those orders from others. In the end, the Director is still regulating the plan.

... The Director’s denial of the Churches’ request for exceptions to accommodate their religious beliefs, based solely on the fact that those requests did not originate with a plan, was not narrowly tailored to serve a compelling interest.

ADF issued a press release announcing the decision.

HRSA Wrongly Eliminated Required Insurance Coverage For Natural Family Planning Methods

 In Tice-Harouff v. Johnson, (ED TX, Aug. 12, 2022), a Texas federal district court held that changes in the language of federal regulations specifying the required cost-free contraceptive coverage by qualified health plans eliminated coverage for fertility-awareness based methods. These natural family planning methods are used, among others, by women with religious objections to use of contraceptives. The court held that the Health Resources and Services Administration violated the Notice and Comment requirement of the Administrative Procedure Act in adopting the amendments and that the amendments were arbitrary and capricious. The court rejected the government's claim that the change in language had not eliminated coverage for such methods. ADF issued a press release announcing the decision.

Colorado Imposes Reporting Requirements On Health Care Sharing Ministries

Yesterday, Colorado Governor Jared Polis signed House Bill 22-1269 (full text) into law. The law requires health care sharing ministries to file detailed annual reports with the Commissioner of Insurance. Colorado Politics reports on the bill.

No Title VII Violation In Denying Hospital Employee 7 Days Off For Jewish Holiday Observance

In Wagner v. Saint Joseph's/ Candler Health Systems, Inc., (SD GA, March 28, 2022), a Georgia federal district court held that a hospital did not violate Title VII when it fired an Orthodox Jewish admissions notification specialist for taking off four days, in addition to the three days that were approved, to observe the Fall Jewish holidays. The court said in part:

The evidence shows that, due to the unique nature of Wagner’s job, accommodating her request would have required her supervisors and fellow employees ... to perform Wagner’s job for seven days over a seventeen-workday period. The parties agree that Wagner’s job was “time-sensitive” and that there were financial ramifications for the Hospital if Wagner (or whoever was performing her job) failed to notify insurance companies of inpatient stays involving one of their insureds within twenty-four hours.... Wagner also concedes that if the Hospital were to have granted her seven days off to observe the October High Holidays, [fellow employees] ... would have had to bear an additional workload, which would have taken them away from their own jobs....

This evidence suggests that the Hospital would have—and ultimately did— endure more than a de minimis cost in order to accommodate Wagner’s request to miss seven days of work to observe the October High Holidays.